2019 (12) TMI 463 - AAR - GST

Classification of goods - confectionery products like cakes, rusks etc. - whether the products are classifiable under HSN 1601 or HSB 1905? - HELD THAT - Baked food preparations of flour are classifiable under HSN 1905, which includes bread, pastries, cakes, biscuits and other bakers wares . Explanatory Notes to HSN, Third Edition, published by the World Customs Organization (hereinafter EN) clarifies that the heading 1905 includes all bakers wares. Any food preparation that involves baking as the method of cooking should, therefore, be included under HSN 1905. EN further elaborates on the commonly used ingredients of such products. They include inter alia flour and meat - Food preparations, containing more than 20% by weight of sausage, meat, meat offal, fish etc. are included in Chapter 16 (Chapter Note 2 to Chapter 16). According to Chapter Note 2 to Chapter 16 and EN, Chapter 16 the weight of meat to be considered at the stage when it is presented to the customer as foodstuff and not at the ingredient level before preparation of the food. In the present context, the products that survive as bakers wares if the chicken meat is removed cannot be labelled food preparations based on meat. Chicken meat is used as a filling in most of the products where bread or baked flour is used as the base. It appears from the description of cooking annexed to the Application that bread or other baked product, prepared from dough of flour, and the filling containing chicken meat are cooked separately. The baked products (sandwich, puff, patty, burger etc.) as distinct food preparations will survive even if the chicken meat is excluded from the filling. They are, therefore, not food preparations based on chicken meat. Such bakers wares cannot, therefore, be classified under HSN 1601. Chicken meat is used as a filling in most of the above products where bread or baked flour is used as the base. The baked product (sandwich, puff, patty, burger etc.) as distinct food preparations will survive even if the chicken meat is excluded from the filling. They are, therefore, not food preparations based on chicken meat. Such bakers wares cannot, therefore, be classified under HSN 1601 - A few of the Applicant s products would not survive as food preparation if the chicken meat were removed. Such products may be classified under HSN 1601, provided they contain more than 20% by weight of meat.

Summary

Issues Involved:
1. Admissibility of the Application
2. Classification of Products under HSN Codes
3. Submissions of the Applicant
4. Submissions of the Revenue
5. Observations and Findings of the Authority

1. Admissibility of the Application:
The Applicant, a manufacturer of confectionery products containing portions of cooked chicken, fish, or egg, seeks a ruling on whether the products listed in para 2 of Annexure B are classifiable under HSN 1601. The application is admissible under section 97(2)(a) of the GST Act for the classification of goods. The Applicant declares that the issue is not pending or decided in any proceedings under the GST Act, and the revenue officer has not objected to the admissibility. However, following the WBAAAR's caution in a previous case, this Authority limits the ruling to products that display common attributes and belong to a single category.

2. Classification of Products under HSN Codes:
The products are analyzed based on their cereal component, non-vegetarian component, and method of cooking. Most products are baked food preparations made of flour and contain chicken. The Applicant argues that these products, containing more than 20% by weight of chicken meat, should be classified under HSN 1601 instead of HSN 2106. The Applicant supports this with a test report confirming the chicken meat content.

3. Submissions of the Applicant:
The Applicant submits that the products have been classified under HSN 2106 but argues they should be under HSN 1601 due to the chicken meat content. The Applicant refers to a CESTAT decision in Venky’s Fast Food, supporting their argument that the products are preparations of meat and should be classified under HSN 1601.

4. Submissions of the Revenue:
The concerned officer from the Revenue has no comments apart from the admissibility of the Application.

5. Observations and Findings of the Authority:
Baked food preparations of flour are classifiable under HSN 1905, which includes bread, pastries, cakes, biscuits, and other bakers’ wares. However, Chapter Note I(a) to Chapter 19 excludes food preparations containing more than 20% by weight of sausage, meat, meat offal, fish, etc. These are included in Chapter 16, which states that the weight of meat should be considered at the stage when presented to the customer as foodstuff. The Applicant’s products, being preparations of meat with more than 20% by weight of chicken meat, should be classified under HSN 1601.

The decision in Venky’s Fast Food was based on the Excise Tariff Act before 2005, which included preparations of meat and fish. The current HSN 1601 specifies food preparations based on meat, excluding fish preparations. The CESTAT in Dodsal Corporation Pvt Ltd ruled that food preparations based on meat must have meat as the starting point. The Applicant’s products, where chicken meat is used as a filling and the baked product can survive without it, are not food preparations based on meat and cannot be classified under HSN 1601. However, products like Chicken Cutlet and Chicken Finger, which would not survive without chicken meat, may be classified under HSN 1601 if they contain more than 20% by weight of meat.

Ruling:
The Application is admitted for products that are baked food preparations made of flour and contain chicken, listed under Sl Nos 1 to 5 and 11 to 25. These products, where chicken meat is used as a filling and the baked product can survive without it, are not food preparations based on meat and cannot be classified under HSN 1601. Products that would not survive without chicken meat may be classified under HSN 1601 if they contain more than 20% by weight of meat. This Ruling is valid subject to the provisions under Section 103 until declared void under Section 104(1) of the GST Act.