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TMI Blog2019 (4) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... any Heading make it abundantly clear that cheese which contain various additions that are battered or breaded and pre-cooked are included as Cheese under Heading 0406. Ingredients and characteristics of the product with which we are concerned do not contain any material or feature, which will take the said product out of goods falling under Heading 0406. Thus, Goods under reference are classifiable under S. No. 13 of Schedule II of Notification 1/201 7 of Central tax (Rate). vide Heading 0406 and taxable @ 12% GST. - Order No. 07/AAAR/18/4/2019 - - - Dated:- 18-4-2019 - RAJEEV TANDON AND SMT. AMRITA SONI, MEMBER (Proceeding under Section 101 of the Central Goods and Services Tax Act, 2017 and Uttar Pradesh Goods and Service Tax Act, 2017) The present appeal has filed under Section 100 of the Central Goods and Service Tax Act, 2017 and Uttar Pradesh Goods and Service Tax Act, 2017 (hereinafter referred to as the CGST Act and UPGST Act ) by M/s. Savencia Fromage dairy Pvt. Ltd., A 41, hosiery Complex, Phase 2 Extension, Noida, U.P. 201305 (hereinafter referred to as the Applicant ) against the Advance Ruling Order No. 17 dated 10.12.2018 by the Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her order(s) as may be deemed fit and proper in the facts and circumstances of the case. b) And they submitted the grounds of appeal as Annexure- B wherein the grounds for appeal broadly were as under:- i. Relevant entries under consideration. ii. Scope of heading 0406, iii. Impugned goods merit classification under Heading 0406. iv. The impugned goods are not classifiable under Heading 2106. v. The impugned goods satisfy the description cheese . vi. The common parlance test is inapplicable. vii. The Appellant did not submit test report declaring ingredients and recipe. viii. Authority ignored the US customs Rulings. ix. FSSAI classification is not relevant in the present case. 6) Applicant was granted personal hearing on 27.03.2019; Personal Hearing a) Mr. Puneet Bansal, Advocate and M/s. Sneha Ghosh, Advocate from M/s. Nitya Associates represented M/s. Savencia Fromage and Dairy Pvt. Noida on behalf of the applicant for personal hearing. b) During the Personal Hearing, they submitted that the product was under classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance Ruling of Uttar Pradesh; and (ii) Whether the product is subject to CGST and SGST at the rate or 6 percent each under S.NO. 13 of the Schedule-II appended to Notification No. 1/2017-Central Tax (Rate) dated June 28, 2017 ( Notification No, 1/2017-CT(R) and Notification KA.NI.-2-836/XI-9(47)/17-U.P.Act-1-2017-Order-(06)-2017 dated June 30, 2017 (Notification No. 836/17 ) respectively. 8) Classification of the product in question i.e. Breaded Cheese:- 1. Learned Counsel representing the appellant raised points for our consideration, According to them, the product was under classification head 04069000 as other cheese , They further took resort to Customs Rulings HQ 963175 dated 10.10.1999 in support of the case and also drew attention to other rulings incorporated in the submission of oral arguments. They also brought reference to general rules of interpretation rule 3(b) in support of their proposition suggesting that the product would not get classified under 2106 90 99 being a residual entry and that essential characteristics both understood in common parlance as well from English grammatical context would and in terms of volume 55%, their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12) In view of this settled legal position, we have to examine the relevant items of goods mentioned in the Tariff sub-headings of both the chapter 4 and chapter 21 of the Customs Tariff Act. 13 a) Chapter 4 of the Customs Tariff Act deals with dairy produce; birds, eggs; natural honey; edible products of animal origin, not elsewhere specified or included. Products obtained by the concentration of whey and with the addition of milk or milkfat are to be classified as cheese in heading 0406 provided that they have the three following characteristics:- i) A milkfat content, by weight of the dry matter, of 5% or more; ii) A dry matter content, by weight, of at least 70% but not exceeding 85%; and iii) They are moulded or capable of being moulded. b) The chapter does not cover:- i) A products obtained from whey, containing by weight more than 95% lactose, expressed as anhydrous lactose calculated on the dry matter (Heading 1702); ii) Products obtained from milk by replacing one or more of its natural constituents (e.g. butyric fats) by another substance (e.g. oleic fats) (Heading 1901 or 2106); or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18) Chapter 21 of the Customs Tariff Act deals with the miscellaneous edible preparations , Supplementary Notes of the Chapter 21 at point No. 5 provides:- Heading 2106 (except tariff 2106 90 20 and 2106 90 30), inter alia, includes;- i) Protein concentrates and textured protein substances: ii) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption; iii) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages of food preparations for human consumption; iv) Powders for table creams, jellies, ice creams and similar preparations, whether or not ingredients; v) Flavouring powder for making beverages, whether or not sweetened; vi) Preparations consisting of tea or coffee and milk powder, sugar and any other added ingredients; vii) Preparations (e.g.. tablets) consisting of saccharin and foodstuff, such as lactose, used for sweetening purpose; viii) Pre-cooked rice, cooked either fully or partially and their dehydrates: and ix) Preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned goods it is clear that cheese forms most important constituent (55% of total volume) of the product and the impugned goods cannot be formed without cheese. The batter and bread coating are not essential and can be easily substituted. It is only cheese that differentiates the impugned goods from any other product. As Heading 0406 includes processed cheese , which may also contain cream or other dairy products, salts, spices, flavouring, colouring and water. ii) In addition to the above, it is undisputed that impugned goods are neither sweetmeat nor are they in the nature of namkeens, bhujia etc. The impugned goods thus are not coveted by Supplementary Chapter Note 6 referred above. Thus, in reference to the impugned goods, both the criteria specified for classification under Heading 2106 are not fulfilled. 20) On the other side, Heading 0406 includes not only cheese but mixture or combination of cheese and some Other product, including bread and herbs. The term cheese under Heading 0406 is of wide import covering within its sweep not only all kinds of cheese but certain articles of cheese too. The process of mixing other ingredients such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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