TMI Blog2015 (10) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... owed – Decided in favour of the Appellant. - Appeal No. C/89394/2013, C/89395/2013 & C/85233/2014 - Final Order Nos. A/1137-1139/2015/CB - Dated:- 8-4-2015 - M V Ravindran, Member (J) And P S Pruthi, Member (T) For the Appellant : Shri T. Vishwanathan, Adv For the Respondent : Shri Ahibaran, Addl. Commissioner ( A. R. ) ORDER Per M V Ravindran This appeal is directed against Order-in-Original No. 114/2013/CAC/CC(G)/PKA/CFS/MI dt. 31.8.2013. Connected Appeal No. C/89394/2013 was called from registry and taken up for disposal together as also appeal No. C/85233/2014 which is in respect of same appellant, against Order-in-Appeal No. 1376 (CFS/Mulund)/2013 (JNCH)/IMP-1113 dated 19.12.2013 2. The relevant facts that arise for consideration are the appellant herein filed Bill of Entry no . 6750153 dt. 07.05.2012 for clearing the goods for home consumption, described them as Mama's Best India Chocolate 400 grams . The appellant also claimed that the subject goods are classifiable under CTH/CETH 19019090 claiming the concessional BCD as being supplies from AIFTA Country of Origin under Notification No. 46/2011 (Sr. No. 158) as the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has been clearly established that the product imported by the appellant would be covered under the category of food or food preparation falling under Chapter heading 0401 to 0404 as the product contains more percentage of milk product. He would then draw our attention to the HSN Explanatory Notes of Chapter 19 and would submit that as per HSN, food preparation of goods of Headings 0401 to 0404 would apply and the product being imported is used for dietetic purpose and hence correctly classifiable under Chapter 19. He would submit that similar issue involving classification of a product SIMILAC -2 was before the Bench in Appeal No. C/87691/13-MUM on the very same appellant. He would submit that the Bench vide Final Order No. A/1711/14/CSTB/C-I dt. 10.10.2014 disposed of the appeal in favour of the appellant. He would submit that in that case, the issue was whether the product imported would fall under the very same headings 21069099 as claimed by the Revenue or as claimed by the appellant under CTH 19011090 and cannot be classified under Chapter heading No. 2106. It is also his submission that the Bench has recorded that the product SIMILAC is admittedly preparation pred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch in the absence of any substantiation by the appellant the product have been correctly classifiable under Chapter heading 2106. The impugned order is to be upheld and the demand of the differential duty needs to be confirmed along with interest and penalties. 5. We have considered the submissions made at length by both sides and perused the records. 6. Undisputed facts are the appellants have imported the product which as per label indicates as Mama's Best Premium Chocolate Nutritional Powder , and the description of the goods on the Bill of Entry is Mama's Best India Chocolate 400 grams . It is also not in dispute that during the clearances made by the appellant of this similar product, they had filed all the relevant documents with the authorities including the country of origin certificate from Director General of Customs, Singapore. It is also undisputed that appellant is a ACP client and the goods are cleared under RMS Procedure. 7. The dispute in this case is regarding the classification of the goods imported by the appellant. The assessee is claiming classification of the goods under Customs Tariff Heading 1901 while the Revenue is trying to classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Food preparations not elsewhere specified or included 2106 10 00 - Protein concentrates and textured protein substances kg. 30% - 2106 90 - Other: --- Soft drink concentrates: 2106 90 11 ---- Sharbat kg. 150% - 2106 90 19 ---- Other kg. 150% - 2106 90 20 --- Pan masala kg. 150% - 2106 90 30 --- Betel nut product known as Supari k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Sucrose (12%), (d) Cocoa Powder (2.5%) (e) Oligofructose (2.2%), (f) Minerals and Vitamins is not disputed by the revenue. The main ingredients as indicated hereinabove in the letter by the appellant would indicate that the product predominantly contains milk and milk derivative. The said product would have got ordinarily classified under Chapter Heading 0404 as product containing natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included (as per the CTH reproduced hereinabove), but since the product imported by the appellant contains various other minerals and cocoa powder to the extent of 2.5%, the said product does not merit classification under Chapter Heading 0404. This would take us do the next available chapter heading which this product can be classified is 1901. The chapter notes of heading No. 1901 specifically indicates that the goods of heading 0401 to 0404 which do not have cocoa containing more than 5% by weight are classified under the said heading 1901. As is already recorded by us, there is no dispute as to the claim of the appellant that the imported goods contain cocoa of 2.5%, and hence C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We reproduce the relevant portion of HSN Explanatory Notes of Chapter 21. 21.06 - Food preparations not elsewhere specified or included. 2106.10 - Protein concentrates and textured protein substances. 2106.90 - Other Provided that they are not covered by any other heading of the Nomenclature, this heading covers: (A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption (B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc) with foodstuffs (Flour, sugar, milk powder, etc) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38) However, the heading does not cover enzymatic preparations containing foodstuffs (e.g., Meat tenderisers consisting of a proteolytic enzyme with added dextrose or other foodstuffs). Such preparations fall in heading 35. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter Heading No. 1901.10 and Revenue disputed the same and held a view that the product merits classification under Chapter 2106. In the said order, Bench after reproducing the rival contending entries held as under: From the reading of the above tariff entry of 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 preparations 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 product SIMILAC-2 is specifically cove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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