9911796707
TMI Blog2015 (4) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... departmental officers have also been endorsed by the authority on the subject i.e. The Institute of Chemical Technology, University of Mumbai, vide certificate dated 16.05.2007, wherein while mentioning the food ingredients contained in "Fresubin", it has been certified that since the said product is to be used as liquid food/diet by just adding water, the same should be termed as 'Instant Food Mix'. The reason assigned in the impugned order for non-consideration of the said certificate are that there is no mention of drawl of samples from the disputed goods, and that there is no disclosure regarding the name or authority on whose initiative the same had been issued. We are of the opinion that the competency of the said institute in furnishing the certificate cannot be questioned by the revenue, especially in absence of a contrary certificate being obtained from a recognized agency of repute. Moreover, when the lower authorities have accepted the classification of "Fresubin" under sub heading 21069099 of heading 2106", as food preparations not elsewhere specified" and the goods, in question, can be consumed simply by mixing with water, the same have to be treated the "food mixes" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,964/- and imposition of equal amount of penalty in five adjudication orders passed by Jurisdictional Assistant Commissioner. Appeals filed against the said orders were rejected by the Commissioner (Appeals) vide impugned orders dated 29.10.2009, 07.06.2010, 07.06.2010, 28.06.2012 and 07.12.2013 against which these appeals have been preferred before this Tribunal. 3. The learned Advocate Shri Neerav R. Mainkar appearing for the appellant inter alia, submitted that "Fresubin" is made from the basic food Ingredients namely, corn starch, sucrose, milk protein and vegetable oil of required level/percentage, with the addition of minerals and vitamins for food enrichment; that the said food ingredients are mixed, cooked and dried into powder and that the said powder can be consumed by mixing with water and that the product 'Fresubin' is therefore "instant food mix". The learned Advocate further submitted that in compliance of the requirement of food laws and for innovative marketing of the product "Fresubin", the appellant provide additional information in the packets/pouches regarding its possible use for hospitalized patients, which does not defea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Masala Kg. 16% 21069030 Betel nut product knows as "supari" Kg. 16% 21069040 Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrin syrup Kg. 16% 21069050 Compound preparations for making non-alcoholic beverages Kg. 16% 21069060 Food flavoring material Kg. 16% 21069070 Churna for pan Kg. 16% 21069080 Custard powder other Kg. 16% 21069091 Diabitic foods Kg. 16% 21069092 Sterilized or pasteurized miltone Kg. Nil 21069099 Other Kg. 16% 7. Supplementary Note No. 5 appended to Chapter 21 of CETA vide clause (b) provides that Heading 2106, inter alia, includes preparation for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption. Fresubin made from hydrolysed corn starch (45-50%), Sugar (15-20%), Milk Protein (15-20%), vegetable Oil (15-20%), multivitamins, can be consumed simply by adding water to it and hence, it is covered by heading 2106. Since, it is a food preparations of other than protein concentrates/ textured protein it is covered by 210690 and since it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of the product and the goods are marketed/sold as 'meal replacement/supplement'. According to the impugned order, a product can only be treated as "food mix", only if it is regarded as basic food and not a substitute food and it must be known as food product/food mix in the common parlance. We find from the impugned order that the above stated submissions of the appellant regarding mixture of various basic food ingredients for preparation of "Fresubin" has not been specifically discussed. Further, the submissions of the appellant that affixation of additional information in the pouches regarding its possible use for hospitalized patients cannot change the basic characteristic of "Instant Food Mix" being a statutory requirement under the food laws, have been completely ignored in the impugned order. We also find that no conceivable substantiation has been brought on record to negate the stand of appellant, which is duly endorsed by the expert on the concerned field i.e. the Institute of Chemical Technology, University of Mumbai, vide certificate dated 16.05.2007. The reason assigned in the impugned order for non-consideration of the said cer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
