2008 (2) TMI 211 - AT - Central Excise

Norash Cream is curative in nature for napkin rash and diaper rash for babies this cream has medicinal properties so it is covered by P&P medicine so falls under CET SH 3003.10, not 3304.00 - Zerolac C and Enterall (infant food) classifiable under SH 1901.11 & 2108.99 respectively - Trophox and Threptin Micromix, both product contain protein & consumed after mixing in boiling water or milk, so classifiable under SH 2108.99, not under SH 1901.99 revenue appeal dismissed

Summary

Issues: Classification of Norash cream, Zerolac C, Enterall, Trophox, and Threptin Micromix under different CET sub-headings.

Norash Cream:
The revenue contended that Norash cream falls under CET sub-heading 3304.00 as a barrier cream, while the assessee argued for classification under CET sub-heading 3003.10. The product's literature indicated curative properties for skin rashes in babies, with ingredients like Dimethicone, zinc oxide, calamine, and cetrimide. The ingredients were found to have prophylactic uses on skin rashes, supporting its classification as a P&P medicament under CET sub-heading 3003.10. The Tribunal accepted the Commissioner (Appeals)'s finding and upheld the classification under CET sub-heading 3003.10.

Zerolac C and Enterall:
The show cause notice proposed classifying Zerolac C and Enterall under CET sub-heading 3003.10, but the assessee claimed classification under different sub-headings. The adjudicating authority upheld the assessee's classification of Zerolac C as infant food under CET sub-heading 1901.11 and Enterall as a miscellaneous edible preparation under CET sub-heading 2108.99. The Commissioner (Appeals) ruled that new classification claims could not be raised at the appellate stage and upheld the classification of Zerolac C and Enterall under their respective sub-headings as per the adjudicating authority's decision.

Trophox and Threptin Micromix:
Trophox, made from defatted soya flour and Threptin Micromix, made from sodium caseinate and skimmed milk powder, were analyzed for classification. Both products were protein supplements, with Trophox used for increased protein requirements and Threptin Micromix as a protein supplement for various individuals. The products predominantly contained protein and were considered food supplements under note 9 to Chapter 21. The Tribunal found that they fell under CET sub-heading 2108.99 as "miscellaneous edible preparation not elsewhere specified or included." The classification of these two products was upheld based on their nature as food supplements satisfying the requirements of note 9 to Chapter 21.

In conclusion, the Tribunal upheld the classification of Norash cream under CET sub-heading 3003.10, Zerolac C under 1901.11, Enterall under 2108.99, Trophox and Threptin Micromix under 2108.99, rejecting the revenue's contentions and affirming the decisions of the authorities below. The appeal was dismissed, and the impugned order on the classification of the five products was upheld.