2011 (4) TMI 591 - AT - Central Excise

Exemption - Under Notification No. 3/2006-C.E., dated 1-3-2006 - whether the expression all kinds of food mixes would include food supplement or not - The notification specifically refers to All kinds of food mixes including instant food mixes , along with chapter sub-heading 2106 90 - merely because food supplement may also be classifiable under same chapter heading that cannot be a ground to claim exemption under the notification as notification specifically describes the product which would be entitled to claim exemption apart from disclosing chapter sub-heading number - Undisputedly, the description does not include food supplement - Therefore, prima-facie, decided against the assessee.

Summary

Issues:
Interpretation of the expression "all kinds of food mixes" to include food supplements for claiming exemption under Notification No. 3/2006-C.E.

The issue at hand revolves around the interpretation of the term "all kinds of food mixes" to ascertain whether it encompasses food supplements for the purpose of claiming exemption under Notification No. 3/2006-C.E. The appellant's contention is based on the product being a food supplement, while the department disputes this claim by arguing that the relevant HSN notes predate the period in question. Despite the reliance on HSN notes, the crux of the matter lies in the fact that the notification specifically mentions "All kinds of food mixes including instant food mixes" under chapter sub-heading 2106 90. The absence of a direct reference to food supplements in the description provided by the notification leads to the conclusion that food supplements do not fall within the ambit of the exemption. Consequently, the tribunal finds no grounds for a complete waiver of the duty amount demanded in the impugned orders. Therefore, the appellants are instructed to deposit the duty amount within eight weeks, with the remaining sum related to interest and penalty being waived until the appeal's resolution.

In the previous period, the stay application concerning the appellant's case had been addressed, resulting in the rejection of contentions raised by the appellants. The current applications pertain to a subsequent period but involve a similar issue. Notably, the order from the previous period has not been challenged further by the appellants. This context sets the stage for evaluating whether the expression "all kinds of food mixes" encompasses food supplements, given that the product in question is classified as a food supplement. The reliance on HSN notes by the appellants is countered by the department's argument regarding the temporal relevance of these notes. Despite this, the pivotal factor remains the specific description provided in Notification No. 3/2006-C.E., which does not explicitly include food supplements. As a result, the tribunal deems it necessary for the appellants to adhere to the directive of depositing the duty amount demanded, while offering a partial waiver on the remaining sum pending the appeal's resolution.