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TMI Blog2009 (2) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Note 4 and mere addition of vitamins would not take the product out of Chapter 4 as held by the Tribunal in the case of Nestle India Ltd., Dalmia Industries and Amrit Foods, or the product will go out of Chapter 4 on the ground of addition of vitamins alone as held by the Bench in the case of Frozen Foods Pvt. Ltd., which has also been upheld by the Supreme Court?" 2. Learned Counsel appearing for the company submits that prior to 31-3-2005 Chapter Heading No. 04.04 was not aligned with HSN Chapter Headings. It is his submission that the product manufactured by the appellant-company was correctly covered under Chapter Heading No. 04.04. It is his submission that decision of the Tribunal in the case of Frozen Foods Pvt. Ltd., did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law of the land. It is the submission that the Central Excise Tariff does not contemplate addition of the vitamins. It is the submission that this was a conscious deviation from the HSN. He would submit that the case laws relied upon by the Counsel is not on the point directly. 5. The issue involved in this case is whether addition of vitamins was permissible under Note 4 and whether such addition will take the product out of purview of Chapter 4 of Central Excise Tariff Act, 1985. In order to appreciate the issue in correct perspective, the said Chapter Headings No. 04 and Chapter Note No. 4 (as was during the period prior to 31-3-2005) are reproduced below: Heading No. Sub-heading No. Description of goods Rate of duty 04.04 &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to maintain the natural consistency of the product during transport in liquid state (disodium phosphate, trisodium citrate and calcium chloride, for instance) as well as very small quantities of anti-oxidants or of vitamins not normally found in the product. Certain of these products may also contain small quantities of chemicals (e.g. sodium bicarbonate) necessary for their processing; products in the form of powder or granules may contain anticaking agents (for example, phospholipids, amorphous silicon dioxide). 7. We anxiously considered the submissions made by both sides. We find during the relevant period Chapter 4 of the Central Excise Tariff Act, 1985 and HSN Chapter 4 were not aligned completely. Subsequently from 1-4-2005, Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccept the submissions of the learned SDR on this question. So far as the applicability of the Explanatory Notes of HSN is concerned the position is clear that these are, at best, only of persuasive value and are not part of the tariff and are not of binding nature. It would not, therefore, be correct to start with the presumption that the additives mentioned in the General Explanatory Notes of Chapter 4 are permissible additives for purposes of tariff classification under the Central Excise Tariff. Such additives find specific mention in Note (4) and these are sugar or other sweetening matter, flavours, added fruit or cocoa. There is no mention of vitamins in Note (4) and therefore, we agree with the contention of the learned SDR that, on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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