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TMI Blog2015 (10) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... lassifiable under CTH/CETH 19019090 claiming the concessional BCD as being supplies from AIFTA Country of Origin under Notification No. 46/2011 (Sr. No. 158) as the goods were covered by the country of Origin Certificate issued by Director General of Customs, Singapore. The goods covered under the Bill of Entry was cleared in RMS; after the out of charge was given, the Customs authorities noticed that the actual trade name of the goods on the container was "Mama's Best Premium Chocolate" and not as 'Mamas Best India Chocolate"; it was a nutritional powder which is a proprietary food. Further investigation was undertaken and it was noticed that the identical goods were cleared by 17 Bills of Entries during the period 22.3.2011 to 2.5.2012, wherein it was ascertained that duty was short paid, Show cause notice dt. 29.10.2012 was issued for the recovery of the differential Customs duty and various other duties along with interest as also for imposition of penalties. The appellants contested the issue on merits and limitation before the adjudicating authority. The adjudicating authority after following the due process of law did not agree with the contentions raised by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1090 and cannot be classified under Chapter heading No. 2106. It is also his submission that the Bench has recorded that the product "SIMILAC" is admittedly preparation predominantly of milk powder and it is consumed under CTH 1901 as the product would fall under Chapter 0401 to 0404 a food preparation. He would also rely upon the judgment of the Tribunal in the case of Dalmia Diary Industries ltd. vs. Collector of C. Ex. 1989 E.L.T. 164 (Tribunal) for the proposition that when the ingredients of goods include mainly skimmed milk, the product merits classification under Chapter 0401 to 0404 and would get classified under Chapter 19.01 if it has got any other additional ingredients. He would submit that the said case of the Dalmia Dairy Industries Ltrd. Was taken in appeal by the Revenue to Apex Court and Apex Court has upheld the order of the Tribunal. It is also his submission that in view of the facts, it may be held that the appellant's product merits classification under Chapter Heading No. 19019090. 4. The Ld. DR on the other hand would draw our attention to the labels of the product. It is his submission that the appellant had misclassified the product despite knowing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods imported by the appellant. The assessee is claiming classification of the goods under Customs Tariff Heading 1901 while the Revenue is trying to classified the said product under Customs Tariff 2106. The classification claimed by the appellant is 19019090 while Revenue seeks to classify the same under Chapter Heading 21069099. In order to appreciate the correct classification we reproduce the said rival Tariff Headings. Tariff Item Description of goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 1901 Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 0401 to 0404, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) Oligofructose (2.2%), (f) Minerals and Vitamins is not disputed by the revenue. The main ingredients as indicated hereinabove in the letter by the appellant would indicate that the product predominantly contains milk and milk derivative. The said product would have got ordinarily classified under Chapter Heading 0404 as product containing natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included (as per the CTH reproduced hereinabove), but since the product imported by the appellant contains various other minerals and cocoa powder to the extent of 2.5%, the said product does not merit classification under Chapter Heading 0404. This would take us do the next available chapter heading which this product can be classified is 1901. The chapter notes of heading No. 1901 specifically indicates that the goods of heading 0401 to 0404 which do not have cocoa containing more than 5% by weight are classified under the said heading 1901. As is already recorded by us, there is no dispute as to the claim of the appellant that the imported goods contain cocoa of 2.5%, and hence Chapter Note of Chapter Heading 1901 clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 21. 21.06 - Food preparations not elsewhere specified or included. 2106.10 - Protein concentrates and textured protein substances. 2106.90 - Other Provided that they are not covered by any other heading of the Nomenclature, this heading covers: (A) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk, etc.), for human consumption (B) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc) with foodstuffs (Flour, sugar, milk powder, etc) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.) (see the General Explanatory Note to Chapter 38) However, the heading does not cover enzymatic preparations containing foodstuffs (e.g., Meat tenderisers consisting of a proteolytic enzyme with added dextrose or other foodstuffs). Such preparations fall in heading 35.07 provided that they are not covered by a more specific heading in the Nomenclature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter 2106. In the said order, Bench after reproducing the rival contending entries held as under: "From the reading of the above tariff entry of 1901 it is clear that Food preparations of goods of heading 0401 to 0404 is classifiable under 1901 and in particular 'preparations for infant use' falls under 1901.10. From the heading 2106 it can be seen that it covers 'Food preparations not elsewhere specified or included'. On analysis of both the above tariff entries, it is clear that if any food preparations 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 product SIMILAC-2 is specifically covered under the CTH 19011090. Since SIMILAC -2 is covered under 19011090, the same can not, by any stretch of imagi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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