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TMI Blog2023 (6) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant protested the same by filing its objections. 2.3 The adjudicating authority however, vide Order in Original No. 17711/2011 dated 17.11.2011 appears to have finalized the adjudication by classifying the imported 'tomato dry flavour' under Tariff Item 2106 9060 and thereby confirmed the demand issued to the importer under Section 28 of the Customs Act, 1962. Consequential differential duty with interest, as applicable under Section 28AA, was also demanded by the adjudicating authority. 3.1 It appears from the impugned Order-in-Appeal C.Cus. No. 854/2013 dated 25.06.2013 that the appellant had seriously agitated the re-classification and for reducing the demand of differential duty and, inter alia, pleaded that the classification proposed by the Revenue and confirmed thereafter covered only the food preparations which are not elsewhere specified or included and it is also a residuary heading with no specific heading as such. It was also pleaded by them that the HSN note under heading 2106 clearly specified the 'preparations for use directly or after processing, such as cooking, dissolving, or boiling in water, milk, etc., for human consumption'. They had further plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstances in question are classifiable only under CTH 3302. 5.3.2 It is in this connection, according to the learned Advocate, the order of the Mumbai Bench of the Tribunal in the case of M/s. Britco Foods Company Ltd. (supra) is relevant. 5.4 It was further submitted that it was not necessary that it should be made of essential oil, resinoid or oleoresin alone to merit classification under CTH 3302 and that the product in question contains garlic oil, which is an oleoresin; the synthesized tomato aroma forms the basis of the mixture, 'tomato dry flavour' and therefore, the product, namely, tomato dry flavour conforms to the requirements of odoriferous substance mentioned in HSN Note 2 in Chapter 33 and accordingly, merits classification only under CTH 3302. 6. Per contra, Shri S. Balakumar, learned Authorized Representative/Assistant Commissioner, relied upon the findings of the Commissioner (Appeals). He invited our attention to the findings of the adjudicating authority and also drew our attention to the reply filed by the appellant wherein they have specifically admitted that the products in question are flavour blends supplied to them for various applications lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant that Chapter Heading 3302 covers mixtures of one or more odoriferous substances and mixtures of synthetic aromatics among others; the subject imported goods are a mixture of one or more odoriferous substances containing essential oils as well as synthetic aromatics and are meant to be used as raw materials in the perfumery, food or drink industries. 11. Now, let us examine the Chapter Headings 2106 and 3302, which are extracted below: - 2106 FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 21061000 - Protein concentrates and textured protein substances kg. 30% - 210690 - Other : --- Soft drink concentrates : 21069011 ---- Sharbat kg. 150% - 21069019 ---- Other kg. 150% - 21069020 --- Pan masala kg. 150% - 21069030 --- Betel nut product known as "Supari" kg. 150% - 21069040 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup kg. 150% - 21069050 --- Compound preparations for making non-alcoholic beverages kg. 150% - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured with fruit juices and concentrated fruit juice with added ingredients. 12.2 As per the HSN Explanatory Note to Chapter Heading 2106: - "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsist of food and edible preparations which are meant to be used either directly or after processing such as cooking, dissolving or boiling in milk or water or other liquids, for human consumption. As per the HSN Notes, the said heading excludes mixture of odoriferous substances, which can be either natural or synthetic or mixed or both, which are used as raw materials in the perfumery, food or drink industries. 14.2 The appellant's submission is that the subject goods consists of various odoriferous substances and what is imported i.e., the tomato flavour, is of synthetic origin, which makes it classifiable under CTH 3302 1010. The Ld. adjudicating authority has relied on Chapter Note 2 to Chapter 33 of the Customs Tariff Act, 1975, which states that "odoriferous substances" in Chapter Heading 3302 refers only to substances of Chapter Heading 3301 to odoriferous constituents isolated from those substances or to synthetic aromatics, and also referred to the HSN, which states that the goods which qualify for classification under Chapter Heading 3302 should be mixtures, whether or not combined with a diluent or carrier or containing alcohol, of products of other Chapters (e.g., spic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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