2015 (2) TMI 512 - AT - Customs

Demand of differential duty - benefit of CVD exemption under Notification No. 02/2011-CE dated 01/03/2011 - department was of the view that the goods under import are not food mixes but food supplements having medicinal qualities containing specific proteins, minerals and vitamins with sustained release of strength - Held that - The Pediasure is an instant food consisting of starch, sugar, oil, etc., with minor quantities of minerals and vitamins. The product Ensure is also a similar product mainly consisting of starch, sugar, protein with minor quantities of vitamins and minerals and this is for consumption by the elderly people, who need essential nutrition in their diet. The product is consumed by mixing them with water. From the product literature available, it is clearly seen that they are food mixes meant for different age group. The notification covers all food mixes including the instant food mixes . The notification does not stipulate that it should be for consumption by all people or by all age groups. The reliance placed by the Revenue on the decision of Dry Tech Processors India P. Ltd., (2011 (4) TMI 591 - CESTAT, NEW DELHI) is not applicable to the facts of the case because in that case the products consisted of only minerals and vitamins. In the present case minerals and vitamins are in minuscule quantity and bulk of the constituents are carbohydrates, protein, sugar, etc. Therefore, the facts involved in the present case are different and distinguishable from the Dry Tech Processes (I) Pvt. Ltd. case. In the case relied upon by the appellants, namely, Sankalp Food Products 2003 (4) TMI 302 - CEGAT, MUMBAI , Sonic Biochem Extraction (P) Ltd., (2004 (4) TMI 325 - CESTAT, NEW DELHI), this Tribunal has given a liberal interpretation to the term food mixes and held that protein isolate and textured soya, etc. would come within the scope of food mixes. Similar in the case of Pioma Industries, it was held that soft drink concentrate would come within the scope of food mixes. Product imported by the appellant falls within the category of food mixes and the appellant would be eligible for the benefit of Sr. 8 of in the table of Notification No. 02/2011-CE dated 01/03/2011 in respect of CVD - Decided in favour of assessee.

Summary

Issues:
- Classification of imported products under CVD exemption Notification
- Whether imported products qualify as food mixes for exemption

Classification of imported products under CVD exemption Notification:
The case involved an appeal against the Commissioner of Customs (Appeals), Mumbai's order denying CVD exemption under Notification No. 02/2011-CE to imported products like "Pediasure, Ensure, Glucerna, Isomil, and Prosure." The department argued that these goods were not food mixes but food supplements with medicinal qualities, leading to a differential duty demand. The appellant contended that the products were food mixes under heading No. 2106 of the Central Excise Tariff Act, suitable for children and elderly individuals, falling within the exemption's scope.

Whether imported products qualify as food mixes for exemption:
The appellant argued that the imported products were complete and balanced nutritional products designed for specific age groups, meeting nutrient needs and providing essential nutrients. They cited previous tribunal decisions where similar products were considered food mixes eligible for exemption. The Revenue disputed this, claiming the products were for specific medical conditions and not food mixes. However, after reviewing the products' composition and usage, the Tribunal concluded that they indeed qualified as food mixes under the exemption notification. The Tribunal distinguished the case from previous decisions involving products mainly consisting of minerals and vitamins, emphasizing the significant carbohydrate, protein, and sugar content in the present case.

In conclusion, the Tribunal allowed the appeal, ruling that the imported products fell within the category of food mixes eligible for the CVD exemption under Notification No. 02/2011-CE. The decision was based on the products' composition, intended usage for different age groups, and the liberal interpretation of the term "food mixes" by previous tribunal judgments.