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TMI Blog2017 (5) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... ill go to the Heading 19.01 only if it contains other ingredients not permitted by Heading 04.01 to 04.04. It was further held that no other ingredients except permissible stabilizers have been added. Addition of stabilizers is essential to maintain the consistency and shelf life of the products. HSN Explanatory Note also qualifies the addition of stabilizers without changing its classification from Chapter 4 to 19 - the products in question will be under the Chapter Sub-heading 0404.90 - appeal allowed - decided in favor of appellant. - E/1708/2005-EX[DB] - Final Order No. 70328/2017 - Dated:- 8-11-2016 - Mr. Anil Choudhary Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Kiran Kumar Arora, Advocate for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have considered the arguments of both the sides We find that the dispute of classification of milk shake mix (MSM) and soft serve mix (SSM) has to be decided on the basis of Chapter Note 4 of Chapter 4. According to Chapter Note 4 of Chapter 4, the product consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter or flavoured or containing added fruit or Cocoa includes fats and oil derived from milk. The case of the appellant is that the product manufactured by them contains only natural milk constituents except stabilizers added by them within prescribed quantity as permitted under the Prevention of Food Adulteration Rules in accordance with HSN explanatory Notes to Chapter 4. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or packed ice cream mix. We find that the appellants claim is that the stabilizers are added for keeping the products stabilized during its storage and transport and its shelf life. The product stabilizers are emulsifier and maintains consistency of the products. They are not adding additional quality to the products. We find that this is squarely decided in case of Nestle India Ltd. Vs. CCE, New Delhi (supra) by this Tribunal. fn the said decision, it is made clear that the milk product will go to the Heading 19.01 only if it contains other ingredients not permitted by Heading 04.01 to 04.04. We find that in the present case no other ingredients except permissible stabilizers have been added. Addition of stabilizers is essential to maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am except that the process of incorporation of air and freezing are not undertaken in the factory of the assessee. Otherwise, all the basic ingredients required for manufacturing of ice-cream were available in the aforesaid produce and even the ageing process at temperature is 0 to 4 degree centigrade, takes place in the factory of the assessee. It is also an admitted fact that the ingredients of the products are milk to which sugar, glucose and milk powder are added. On the aforesaid basis, we have to determine as to whether it falls in one or the other competing entries mentioned above, Chapter Heading 04.04 deals with other dairy produce; edible products of animal origin not elsewhere specified or included. Thus, all the dairy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two, assessee seeks to cover it under 0401.19, viz., 'other'. From the description of the products given aforesaid read with the Chapter Heading 04.01, in the first blush, it becomes clear that it is to be covered under 0404.90. However, the submission of the learned counsel for the appellant-Revenue is that since stabilizer is added while preparig the aforesaid goods, it does not remain a dairy produce and on the contrary, it becomes food preparation and therefore, would be classified under Chapter Heading 19.01. In this behalf, she has also referred to Head Note 4 to Chapter 4 which reads as under:- 4. Heading No. 04.04 applies, inter alia, to butter-milk, curdled milk, cream, yogurt, whey, curd, and products consisting of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of oil in water, throughout the shelf life and to improve the body and texture and to impart smoothness to the products. Thus, as far as the basic product is concerned, it demonstrates the same and the purpose is only to impart smoothness to the product and to maintain the product consistency during storage and transportation and throughout its shelf life. We find from the aforesaid that the main purpose is to maintain the product consistency during storage and transportation as well as to improve the shelf life. Merely, because it improves the body and texture of the product and adds some smoothness thereto, that would not change the basic character of the produce. We also note that the CESTAT has concluded from the Hawley's C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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