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TMI Blog2015 (2) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... cally covered under the CTH 19011090. Since SIMILAC-2 is covered under 19011090, the same can not, by any stretch of imagination, be covered under CTH 21.06 for a simple reason that the tariff entry of 21.06 is a residuary entry and only those products, which do not find any place in any specific entry, will get classified under the residuary tariff entry. The submission of the revenue that since there is mention on the product that the same should be used on the advise of the health worker, it is not a food but it is medicine, is not at all acceptable for the reason that in terms of the Section 6(b) of the Infant Food Act, the Respondent made a statement on the product - "Infant milk substitute or infant food should be used only on the advice of a health worker as to the need for its use and the proper method of its use." This statement is statutory requirement to ensure that premature babies and infants are not affected by any adverse reaction to infant food and not because it is a medicinal product as assumed by the revenue. As per Note 2A of the General Notes Regarding Import Policy to ITC-HS goods imported into India have to comply with the mandatory Indian Standards whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Custom (Appeals), Mumbai Zone II, which was allowed vide order-in-Appeal No. 356(CFS MULUND) 2013/JNCH/IMP-280 dated 5/4/2013, wherein the Ld. Commissioner (Appeals) has held that the product is specifically marked as 'food supplement for infant'. It is a substitute for the mother's milk. It was held that product in question can not be classified or termed as supplement. Aggrieved with the said order dated 5/4/2013, the Revenue is before us. 2. Shri M.S. Reddy, Ld Dy. Commissioner, (A.R.) appearing for the Revenue submits that the product SIMILAC-2 is not baby food but food supplements containing proteins, minerals, vitamins, carbohydrates fats. The product is required to be taken under medical advise as seen from the leaflet pasted on the product. It has restrictive use, it needs, doses have to be prescribed by the doctor. It is his submission that when any product has to be used as per physician's advise, the same can not be treated as food preparation. He submits that all food supplements are classifiable under CTH 21069099. The ingredients in SIMILAC-2 indicates that it is supplement having medicinal and nutritional qualities as specific 'proteins, mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to be consumed by the infants are to be classified under 19.01. Regarding instruction on the products such as, the product should be used only on the advise of the health worker, consultation with doctor for advise etc., reference was made to the 'Infant Milk Substitute, Feeding Bottle and Infant foods (Regulation of Production, Supply and distribution)Act, 1992 according to which the said instructions are mandatory requirement on the infant food product; therefore, such mention is a statutory requirement. Even as per definition of the 'infant food' provided in the Act, 1992 supra, the product in question is nothing but infant food. He also countered the revenue's contention, that the product in question is not food as it does not satisfy the hunger of human being, by referring the definition of 'food' given in the Food Safety and Standards Act, 2006. 3.1 Ld. Counsel in support of his arguments also referred to IS 15757 specification under which the subject goods is covered as indicated on the packing. He also refers to HSN for Tariff item 04, 19 and 21. He submits that the very same product SIMILAC is being manufactured in India by M/s Drytech Proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malt extract kg. 30% 1901 90 90 --- Other kg. 30% Tariff Item Description of goods Unit Rate of duty 2106 Food preparations not elsewhere specified or included 2106 10 00 - Protein concentrates and textured protein kg. 12% substances 2106 90 - Other: --- Soft drink concentrates: 2106 90 11 ---- Sharbat kg. 12% 2106 90 19 --- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is specifically covered and included in any other tariff heading other than 21.06, the same will not fall under Custom Tariff Head 21.06. The product in question i.e. SIMILAC-2 is admittedly preparation predominantly of milk powder and it is for consumption by an infant. The milk powder is goods falling under 04.02. Thus the product SIMILAC-2 is a food preparation of goods of heading 04.02 and exclusively meant for consumption of infant babies. From the above undisputed facts, it is clearly established that the products SIMILAC-2 is specifically covered under the CTH 19011090. Since SIMILAC-2 is covered under 19011090, the same can not, by any stretch of imagination, be covered under CTH 21.06 for a simple reason that the tariff entry of 21.06 is a residuary entry and only those products, which do not find any place in any specific entry, will get classified under the residuary tariff entry. From the product literature of SIMILAC-2, it is seen that the product is a follow up formula for infants between the age of 6 months and 2 years and the same is used as a substitute for mother's milk. SIMILAC-2 is also recommended as a weaning food. We find that since the product compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'food' it can be seen that the definition of food is very, vide and it specifically includes 'infant food'; therefore the contention of the revenue that only goods which satisfies the hunger of the human being is food, is absolutely contrary to the above definition. Regulation 2.3.14 (4) of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 mandates that infant foods, follow up formula etc, can not be manufactured, sold without the BIS certification mark. In the present case the package of the product clearly bears the BIS certification and the product conforms IS 15757:2007. This specification is meant for infant food. This also goes to establish that the product is nothing else other than 'infant food'. The HS committee in World Customs Organisation ('WCO') has also classified the product - Follow up formula, for infants above the age of 6 months based on whey and skimmed milk, and containing vitamins and minerals under sub heading 1901.10. The Delhi High Court in Manisha Pharma Plasto Pvt. Ltd. vs. UOI, 1999 (112) E.L.T. 22 (Del.) has held that the opinion of WCO can be looked into for deciding the classi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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