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2015 (4) TMI 418 - AT - Central ExciseClassification of Fresubin - Classification as 'food supplement' or 'instant food mix' - duty exemption under Notification no. 3/2006 dated 01.03.2006 - Held that:- appellant had categorically stated that "Fresubin" is made from, or mixture of the basic food ingredients namely, corn starch, sucrose, milk protein and vegetable oil of required level/percentage, with the addition of minerals and vitamins for food enrichment. It has also been stated that the said food ingredients are mixed, cooked and dried into powder and that when the said powder is mixed with water, a ready to consume food/diet is made, which is known in the commercial dialect as "Instant Food Mix". The said submissions of the appellant before the departmental officers have also been endorsed by the authority on the subject i.e. The Institute of Chemical Technology, University of Mumbai, vide certificate dated 16.05.2007, wherein while mentioning the food ingredients contained in "Fresubin", it has been certified that since the said product is to be used as liquid food/diet by just adding water, the same should be termed as 'Instant Food Mix'. The reason assigned in the impugned order for non-consideration of the said certificate are that there is no mention of drawl of samples from the disputed goods, and that there is no disclosure regarding the name or authority on whose initiative the same had been issued. We are of the opinion that the competency of the said institute in furnishing the certificate cannot be questioned by the revenue, especially in absence of a contrary certificate being obtained from a recognized agency of repute. Moreover, when the lower authorities have accepted the classification of "Fresubin" under sub heading 21069099 of heading 2106", as food preparations not elsewhere specified" and the goods, in question, can be consumed simply by mixing with water, the same have to be treated the "food mixes" including 'Instant food mixes' to the purpose of notification No. 3/06-CE. Even if, Fresubin is used by patients recovering from illness, it will not cease to be a food mix. Where S. No. 30A covers all kind of food mixes including "instant food mixes" of sub heading 210690, for the purpose of this entry, no distinction can be made between food mixes specially designed for sick people and the food mixes for others and there would be no justification for treating the same as not covered by this entry. - impugned orders are set aside - Decided in favour of assessee.
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