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2015 (2) TMI 740 - AT - CustomsClassification of imported goods- Food supplement or Food preparation for infants- Held that:- From the reading of tariff entry 1901 it is clear that Food preparations of goods of heading 0401 to 0404 is classifiable under 1901 and in particular 'preparations for infant use' falls under 1901.10. From the heading 2106 it can be seen that it covers 'Food preparations not elsewhere specified or included'. On analysis of both the above tariff entries, it is clear that if any food preparation is specifically covered and included in any other tariff heading other than 21.06, the same will not fall under Custom Tariff Head 21.06. The product in question i.e. SIMILAC-2 is admittedly preparation predominantly of milk powder and it is for consumption by an infant. The milk powder is goods falling under 04.02. Thus the product SIMILAC-2 is a food preparation of goods of heading 04.02 and exclusively meant for consumption of infant babies. From the above undisputed facts, it is clearly established that the products SIMILAC-2 is specifically covered under the CTH 19011090. Since SIMILAC-2 is covered under 19011090, the same can not, by any stretch of imagination, be covered under CTH 21.06 for a simple reason that the tariff entry of 21.06 is a residuary entry and only those products, which do not find any place in any specific entry, will get classified under the residuary tariff entry. The submission of the revenue that since there is mention on the product that the same should be used on the advise of the health worker, it is not a food but it is medicine, is not at all acceptable for the reason that in terms of the Section 6(b) of the Infant Food Act, the Respondent made a statement on the product - "Infant milk substitute or infant food should be used only on the advice of a health worker as to the need for its use and the proper method of its use." This statement is statutory requirement to ensure that premature babies and infants are not affected by any adverse reaction to infant food and not because it is a medicinal product as assumed by the revenue. As per Note 2A of the General Notes Regarding Import Policy to ITC-HS goods imported into India have to comply with the mandatory Indian Standards which are applicable to goods manufacture in India Sl. No. 12 of Appendix III to ITC-HS covers goods covered by IS 15757:2007 titled "Follow up formula-Complementary Foods-Specification". On the package of SIMILAC-2, the said IS specification is mentioned. The description of the goods amongst others, mentioned on the product is "FOLLOW -UP FORMULA - COMPLEMENTARY FOOD, … Similac-2 is spray dried stage 2 follow-up formula designed for infants from 6 months onward as part of a healthy diet during and after waning". From this fact, it is clear that the clear that the certification given under IS 15757:2007 itself endorses the nature of the product that it is a FOLLOW-UP FORMULA and infant food complementary to mother's milk. Therefore there is no doubt in our mind that the product SIMILAC-2 is an infant food and correctly classifiable under CTH 1901.10 and not under 21.06. Decided against the appellant.
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