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TMI Blog2022 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... Foods Pvt Ltd., the applicant, seeking an advance ruling in respect of the following question. Whether the product 'Non-Dairy Cream' manufactured by the Applicant is covered under CH 1517 90 90 or under CH 2106 90 99 of the GST Tariff? At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGST Act. 2. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions of the applicant, M/s. Dlecta Foods Private Limited are as under:- 2.1 The Applicant, is a manufacturer of goods falling under Chapter 04, 15 and 21 of the Tariff (equivalent to the Customs Tariff Act, 1975 and erstwhile Central Excise Tariff Act, 1985), like Milk, Cream, Cheese Butter as well as Products such as Dairy Whipping Cream, Non-Dairy Whipping Cream and other (Dark Ganache) and are suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TURER OF SAME PRODUCT CANNOT BE GROUND FOR CLASSIFICATION OF THE APPLICANT'S PRODUCT: 2.8.2 Applicant, without prejudice, submits that merely on the grounds that, M/s. RICH GRAVISS PVT LTD approached the department under SVS to settle the issue cannot be the ground for the DGGI, Pune to consider the classification of NOW Cream under Tariff 2106. The Finance Act, 2019 at Section 131 clearly clarifies as under: 131. For the removal of doubts, it is hereby declared that save as otherwise expressly provided in sub-section (1) of section 124, nothing contained in this Scheme shall be construed as conferring any benefit, concession or immunity on the declarant in any proceedings other than those in relation to the matter and time period to which the declaration has been made. Thus, the SVS is limited to the benefit, concession or immunity on the Declarant for which declaration is mad6. Therefore, application made by M/s. RICH GRAVISS PVT LTD under the said Scheme cannot be read as acceptance of classification of the product. The said Scheme envisages settlement of disputes in legacy cases without going into the merits or de-merits and hence cannot be a parameter to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stabilizers/Other additives ( 3%); Water Balance 2.11.1 The emulsifiers and stabilizers will generally be either water soluble or oil soluble. Two fractions are formed - oil soluble and water soluble fractions. 2.11.2 To bring these fractions together into an emulsion, we need an emulsification process which creates the emulsion by high speed mixing/dispersion of oil fraction into water fraction. We also homogenise the emulsion to break oil into smaller droplets and to further improve stability. The high speed dispersion and homogenization together constitute the emulsification process. 2.12 THE CLASSIFICATION OF THE PRODUCT BY THE FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA IS EQUIVALENT TO AN EXPERT'S OPINION: The Applicant, without prejudice to whatever is stated herein, submits that the classification dispute of the product NDW Cream is raised without any authority of law or Experts' Opinion and without giving any reason but only ground that M/s. RICH GRAVISS PVT LTD had accepted the liabilities and approached under SVS. The settled classification cannot be disputed unless supported by legal backing and Opinion from an Expert. This is especially so in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previously been hydrogenated, may be worked by emulsification The heading also covers edible preparations made from a single fat or oil (or fractions thereof), whether or not hydrogenated, which have been worked by emulsification, churning, texturation, etc. 2.14.3 It can be seen from the above that the preparation of animal or vegetable fats or oils, which are obtained through the process of 'Emulsification' are squarely covered under this Heading. Thus, the Applicant has correctly classified their product under CH 1517 90 90. 2.15 THE CLAIM FOR CLASSIFICATION OF THE APPLICANT'S PRODUCT UNDER CH. 2106 90 99 IS BASELESS AND TOTALLY INAPPLICABLE: 2.15.1 The alternative classification sought by the Department under CH 2106 90 99 on the grounds that the same covers 'Food Preparations' is hardly of any substance. A close look at the Description reveals that CH 2106 covers Food Preparation not elsewhere specified or included . This means that if there is any food preparation which is specified or included elsewhere in the Tariff Schedule, then the same would by default, not be covered under CH 2106. In the case of the Applicant's prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicative, it is logical that only similar products to those listed patently would be includible under CH 2106 90 99. Thus, the Applicant's product does not even get remotely covered under CH 2106 90 99. 7. From the above, it is clear that Won-Dairy Cream' squarely falls under CH 1517 90 99. 03. CONTENTION - AS PER THE CONCERNED OFFICER: The jurisdictional/concerned officer has not made any submissions. 04. HEARING 4.1 Preliminary e-hearing in the matter was held on 14.09.2021. Authorized representative of the Applicant, Shri. Neerav Mainkar, Advocate was present. The concerned jurisdictional officer was absent. The Authorized representative made oral submissions with respect to admission of their application. The authorised representative's request to withdraw Question Nos 2 3 was accepted and question-1 was admitted, subject to condition that applicant shall clarify whether any notice or adjudication or investigation proceeding regarding Question No.-1 was initiated in their case. 4.2 The application was admitted and called for final hearing on 09.11.2021. The Authorized representative of the applicant, Shri. Neerav Manikar, Learned Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that where any records have been called for by the Authority in any case, such records shall, as soon as possible, be returned to the said concerned officer. (2) The Authority may, after examining the application and the records called for and after hearing the applicant or his authorised representative and the concerned officer or his authorised representative, by order, either admit or reject the application: Provided that the Authority shall not admit the application where the question raised in the application is already pending or decided in any proceedings in the case of an applicant under any of the provisions of this Act. Provided Provided 5.7 From the above, it is very clear that the subject classification matter is pending as a dispute in proceedings initiated by the Directorate General GST Intelligence, Pune Regional Unit and therefore in view of the first provisio to Section 98 of the CGST Act, we refrain from answering the question raised by the applicant and reject the application 06. In view of the extensive deliberations as held hereinabove, we pass an order as follows: ORDER (Under section 98 of the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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