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2015 (9) TMI 1269 - SUPREME COURT

2015 (9) TMI 1269 - SUPREME COURT - 2015 (324) E.L.T. 418 (SC) - Classification of goods - milk shake mix and soft serve mix - Classification under Chapter sub-Heading 0404.90 or under Chapter sub-Heading 1901.19 - Held that:- The Commissioner has himself noted that no chemical name of the stabilizer is used and the role played by the aforesaid ingredients of the stabilizer is to maintain a uniform emulsion of oil in water, throughout the shelf life and to improve the body and texture and to imp .....

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ld not change the basic character of the produce.

Description given there is open ended inasmuch as the Chapter Note itself uses the expression "inter alia". Further, while mentioning the products which would be covered under the said Chapter Heading 04.04, and stating about the additions which could be made, the crucial words are "whether or not". Therefore, the additives which can be added while making the product are illustrative only and merely because stabilizer is not mentioned .....

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ondent : Mr. S. Ganesh, Sr. Adv., Mr. Kamal Budhiraja, Adv., Mr. Aman Gupta, Adv., Mr. Abhinav Mukerji, Adv. ORDER The classification of the two products of the respondent-assessee is the issue which arises for consideration in the present appeal. These are milk shake mix and soft serve mix. The Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT) has classified these products under Chapter sub-Heading 0404.90 accepting the contention of the respondent-assessee .....

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han 40% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of heading Nos. 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. Put up in unit containers : 1901.11 For instant use. 1901.19 Other 1901.91 Malt extract. 1901.92 Food preparations containing malt or malt extract or cocoa powder in any proportion. 1901.99 Oth .....

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ingredients required for manufacturing of ice-cream were available in the aforesaid produce and even the aging process at temperature is 0 to 4 degree centigrade takes place in the factory of the assessee. It is also an admitted fact that the ingredients of the products are milk to which sugar, glucose and milk powder are added. On the aforesaid basis, we have to determine as to whether it falls in one or the other competing entries mentioned above. Chapter Heading 04.04 deals with other dairy .....

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of which any process is ordinarily carried on with the aid of power: 0401.11 - Flavoured milk, whether sweetened or not, put up in Nil unit containers and ordinarily intended for sale 0401.12 - Skimmed milk powder, specially prepared for feeding infants 0401.13 - Milk powder, other than powder specially prepared for feeding infants, put up in unit containers and ordinarily intended for sale. 0401.14 - Concentrated (condensed) milk, whether sweetened or not, put up in unit containers and ordinari .....

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Since the products in question are the mixture of the two, assessee seeks to cover it under 0401.19, viz., 'Other'. From the description of the products given aforesaid along with the Chapter Heading 04.01, in the first blush, it becomes clear that it is to be covered under 0404.90. However the submission of the learned counsel for the appellant-Revenue is that since stabilizer is added while preparing the aforesaid goods, it does not remain a dairy produce and on the contrary, it becom .....

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fat, butterfat and butteroil), dehydrated butter and ghee." From the aforesaid Note 4, it is argued that stabilizer is not mentioned therein and therefore, addition of stabilizer while making the aforesaid preparation would take it out from Heading 04.01. Thus, it needs to be determined as to whether the addition of stabilizer would make it a food preparation and therefore, it would no more remain diary produce and would be covered under Heading 19.01. Learned counsel for the appellant drew .....

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stabilizer are used, answer to the arguments of learned counsel for the appellant would be in the negative. The Commissioner has himself noted that no chemical name of the stabilizer is used and the role played by the aforesaid ingredients of the stabilizer is to maintain a uniform emulsion of oil in water, throughout the shelf life and to improve the body and texture and to impart smoothness to the products. Thus, as far as the basic product is concerned, it demonstrates the same and the purpo .....

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