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2017 (12) TMI 105 - AT - CustomsClassification of imported goods - Concentrated Mineral Drops (CMD) - food preparation or not - whether the goods imported by the appellant viz. Concentrated Minerals Drops (CMD), Elete Electrolyte (Elete) and Nanosil would merit classification as declared by the appellant under CTH 30045020 or under CTH 21069099 as maintained by the department? - Held that: - We are unable to find any facts or evidence adduced by department to establish that CMD is a food preparation per se. By its very nature the use of the word preparations" in heading 21.06 will surely result in foods to be subjected to some type of preparation or in other words, food that has been worked on so as to result in substance like those exemplified in note 5 & 6 of Chapter 21 - We are not able to appreciate that CMD drops would be of genre sought to be explained in the aforesaid chapter notes 5 & 6. Whether CMD drops can be brought into the umbrella of the residual heading 21069099, when all the other prior sub headings are evidently relating to specific preparations made out of food, like sterilized or pasteurized millstone, and the like? - Held that: - On a comparison of the labels of the appellants CMD drops and that of Kevas Concentrance Mineral Drops, it is noted that both claim to be products from Great Lake of Utah and more or less make the same claims about the ingredients and minerals therein. Both the labels indicate an advisory that the product is not a drug / medicine and not intended to treat, prevent or cure any diseases. In our opinion, therefore Keva's Minerals Drops can be considered as a product identical to that imported by the appellant herein - Tribunal in the case of CC New Delhi Vs Keva Industries [2012 (4) TMI 67 - CESTAT, NEW DELHI] has held that the goods being natural sea water had not undergone any processes to be called as 'food preparations or any other preparation'; that there was no test report brought about by Revenue to discharge the burden of proof to claim that goods in question subject to Tariff Entry 2106 and also to satisfy that it was a preparation with or without certain composition and had undergone the process - In the case at hand also there has been no evidence adduced, say by way of an expert opinion or test report from a competent authority / organization to support the claim of the department, that the products are food preparations - the impugned Concentrated Mineral Drops imported by the appellant will not merit classification under 21069099. Valuation of imported goods - enhancement of value - whether the enhancement of the declared import values by the department is in order? - Held that: - From the narration in the SCN it is found that certain details had been retrieved from the hard disc and other documents recovered from the premises of the appellant. From these documents, it emerged that commercial invoices submitted by the appellant at the time of import indicated lower values per bottle against actual values - the appellant has not disputed the fact of recovery of the hard disc / files / documents which have been analyzed by the Commissioner as aforesaid. They have also not been able to adequately refute, by adducing any evidence to the contrary that the adjudicating authority has erred in arriving at the aforesaid conclusions concerning undervaluation. In the circumstances, we are unable to find any infirmity with that portion of the impugned order rejecting the value declared for the impugned goods and redetermining the same. However, to arrive at the exact quantum of differential duty liability considering the impugned goods as classifiable under CTH 2501, but on enhanced assessable value based on the re-determined unit values arrived at in para-29 of the impugned order, the matter is remanded to the adjudicating authority for this limited purpose. Appeal allowed in part and part matter on remand.
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