TMI Blog1986 (6) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... uels, whether or not containing cocoa, but excluding baby foods, that is to say, foods specially prepared for feeding of infants. 2. Composition of spert is given below :- S. No. Ingredients Quantity 1. Liquid Glucose 41.30 gms. 2. Skimmed Milk Powder 24.30 gms. 3. Calcium Casienate 18.00 gms. 4. Malt Extracts 5.30 gms. 5. Sugar 10.00 gms. 6. Vitamin cand 1.10 gms. 3. Controversy centres around the reading of entry 14. The appellant and his learned SDR wants to read the entry in the following manner, as has been read by the Asst. Collector in his order in original .. - preparations with a basis - of flour, of starch, of malt extract, or of malted barley, and of milk foods Appellant s further contention is that the product under consideration, has a basis of malt extract (5.30 gms.) and skimmed milk powder (24.30 gms) since these two together constitute the principal ingredient of the product, apart from liquid glucose which has been added for making the product palatable. 4. In arriving at the above sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We shall refer to them as and when the need arises hereinafter in the course of discussion and findings. 6. I have carefully considered the pleas advanced on both sides. I observe that although notification 17/70, dated 1-3-1970 is an exemption notification and in order to claim an exemption with certain conditions onus is generally on the assessee who claims the exemption to prove that he fulfils the conditions of exemption notification, yet notification 17/70, is of a peculiar nature. By this notification every commodity covered by Item 1B of CET is exempted unconditionally except the commodities listed in the schedule to the notification. In other words, notification lists out the dutiable items which are generally mentioned in the Central Excise Tariff; Notification 17/70 substitutes here the role of the tariff. Accordingly, the onus is on the department to prove that the product under consideration is covered by entry 14 of notification 17/70, dated 1-3-1970. No positive evidence has been admittedly furnished by the department to that effect. 7. This aspect, however, is not decisive of the issue under consideration because the department is relying on proper construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table because of the vagueness of the word bulk . Where to draw the line ? A sure test is to look at comparative percentages of various constituents which give to the product its essential character as food. There are two contending constituents here - skimmed milk powder and calcium casienate. Between the two, skimmed milk powder has been used in greater quantity. By virtue of this test, Spert is a milk food . Argument that calcium casienate provides larger percentage of proteins in Spert confuses the issue and in my view not relevant for determining whether it is covered by entry 14 in the schedule to the notification 17/70. A protein rich supplementary food , as the assessee likes to call Spert does not take it away from the category of milk food on the basis of the above test; that name or advertisement to that effect merely emphasises a quality of the product and does not indicate as to how it is known in the market. Therefore, if entry 14 is read in the way assessee wants us to read, spert will be covered by the term milk foods . 9. In view of the finding given above, I allow the appeal that Spert is dutiable under entry 14 of the notification 17/70, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or feeding infants. 13. The Assistant Collector has gone on the footing that SPERT is a preparation with a basis of malt extract. The appellant s contention is that SPERT is a preparation with a basis of malt extract (5.30 gms) and skimmed milk powder (24.30 gms) and that, since these two, together, constitute the principal ingredients of the product, apart from liquid glucose which has been added for making the product palatable, it is a preparation with a basis of malt extract and milk foods. As stated earlier, there does not seem to be any warrant, in my opinion, to aggregate malt extract and skimmed milk powder to determine the basis of the preparation. Even assuming, for the sake of argument, that the appellant s contention is tenable, since SPERT is admittedly a protein-rich food, its basis, as Shri D.V. Rege, Professor of Food Technology and Director, Department of Chemical Technology, University of Bombay, has stated in his opinion, dated 26th June, 1985 has to be determined taking into account the material from which the protein content of the product is derived. Prof. Rege goes on to say that SPERT contains 23.66% of protein of which 14.4% is derived from the calcium ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a milk food because of the following reasons : Milk Food has not been defined in any of the Acts or Rules that govern food products, e.g. Customs, Excise, PFA. In the absence of a legal definition, a rational interpretation of the term milk food is that it denotes products that are derived exclusively or almost so (processing additives exempted) from milk by physical, chemical or biological processing. This definition would include products like evaporated milk, condensed milk, skimmed milk,- plain yoghurt, cheese, milk powder and others that are obtained from fluid milk by treatments such as heating, drying, fermentation acidification, etc. without any significant addition, of exogenous ingredients. If one does not accept this view, a product that contains milk, cereals, vegetable protein, vegetable fat and fruit, in whatever proportions, may be variously referred to as milk food , cereal food , vegetable protein food , vegetable fat food or fruit food depending on the whims of the individual. There are indeed a very large number of food products that contain milk as one of the ingredients the proportion varying from insignificant (as in tea) to predominant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by these persons. 20. Though notification No. 17/70, dated 1-3-1970 is an exemption notification, the general principle that it is for the assessee who claims exemption from duty to show that his goods fall within the four corners of the notification, may not strictly apply in the present case. It is for the reason that, unlike the general run of notifications, which name products and exempt them, the present notification exempts all goods falling under Item No. 1B of the Central Excise Tariff Schedule from payment of excise duty except those enumerated in the schedule to the Notification. In other words, if a product is covered by any of the entries in the schedule to the notification, it is taxable, otherwise not. In my view, it is, therefore, for the department which is seeking to tax SPERT under entry No. 14 of the schedule to show that it falls within the entry. I am afraid the department has not discharged its burden, whereas the respondent has, on its part, produced sufficient material to point to the conclusion that its product does not fall within the mischief of entry No. 14. 21. In the light of the foregoing discussion, I am of the view that the product SPERT manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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