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TMI Blog2021 (8) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... antity of fruit juice in the beverage is below 10% (5% in case of lime or lemon), but not less than 5% (2.5% in case of lime or lemon), such product shall be denoted as Carbonated Beverage with Fruit Juice. During the month of April 2020, the Appellant filed two Bills of Entry No.7482868 and 7482872 both dated 20.04.2020 (BOEs), applying IGST @ 12%. The learned Assistant Commissioner vide Order-in-Original No.01/AC/DH-DIVN/20-21 dated 06.05.2020 re-assessed the said BOEs and classified imported goods under tariff sub-heading 2202.10 treating the same as carbonated flavoured waters. The learned Commissioner(Appeals) vide Order-in- Appeal being Kol/Cus(CCP)/AKR/299/2020 dated 08.06.2020, set aside the Order-in-Original dated 06.05.l2020 and held that subject goods would be treated as 'fruit juice based drinks' only and classifiable under tariff item 2202 99 20. Being aggrieved with the decision of the learned Commissioner(Appeals), the Department filed Appeal before this Tribunal, being Appeal No.C/77195/2020. The Tribunal vide Final Order No.75031/2021 dated 25.01.2021 held that the impugned goods are rightly classifiable under Tariff item 2202 99 20. In the meantime the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the rate of IGST payable on the imported goods. The relevant entry in Chapter 22 of the Customs Tariff Heading Act is as follows :- Tariff Item Description of goods Unit Rate of Standard Duty Preferential Areas 2202 Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured and other non-alcoholic beverages, not including fruit or vegetable juices of heading 2009 2203 10 - Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured : 2202 10 10 --- Aerated waters ...................................... 1 30% 2202 10 20 --- Lemonade .......................................... 1 30% 2202 10 90 --- Other .............................................. 1 30% - Other 2202 91 00 -- Non-alcoholic beer .......................... 1 30% 2202 99 -- Other : 1 30% 2202 99 10 --- Soya milk drinks, whether or not sweetened or flavoured 1 30% 2202 99 20 --- Fruit pulp or fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to classify the Carbonated beverage with fruit juice containing lime imported by the respondent under "Lemonade' (22021020) and classify the Carbonated beverage containing other fruit juices under others (22021090). 17. Under the second Single dash (-) "other", under which the respondent assessee classifies the product, there are two subcategories, viz., non-alcoholic beer (22029100) and other (220299). Undisputedly, the goods in question are not non-alcoholic beer. Within the"other" (220299), there are four further sub-categories -those containing soya, those containing milk, fruit pulp or fruit juice based drinks and others. The Respondent assessee classified their product under 22029920 --- fruit pulp or fruit juice based drinks. 18. The contention of the Revenue is that the main ingredient of all the products is carbonated water and therefore theycannot be called fruit pulp or fruit juice based drinks. Revenue's second contention is that even if the goods have fruit juice in them, they also have sugar and sweetening matter and carbon dioxide and they are sold as carbonated beverage with fruit juice and therefore they should be considered as carbonated be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cription. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. 4. ......................................... 5. ............................................... 20. As can be seen from the above Rules, if a product is mixed with other products, the classification of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a chocolate and not a preparation of nuts. 24. There are still other cases, where more than one component or ingredient of a mixture- regardless of the quantities- characterise the product. Milk shake, for instance, is made from fruit and milk and can neither be called only milk nor fruit juice. It is the combination of the two which gives its unique character. 25. The question which falls for consideration in the present case is how to view the products in question- (a) as carbonated beverages treating the fruit juice as a secondary character as the Revenue views them or (b) as fruit juice based drinks as the Respondent assessee views them. In our considered view, a decision on this could be made by examining how they are being sold. They are being sold as "Carbonated beverages with fruit juice'- neither as fruit juice based drinks nor as carbonated beverages although the fruit juice content is only 5% (or 2.5% in case of lime). This gives the products their unique characteristic distinct from both carbonated beverages and fruit juices. The FSSAI regulation (2.3.30 clause 3A) also conceives of such a category of products in the market. Thus, they fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not even applicable to any assessee other than the one who sought clarification. Therefore, the learned Commissioner (Appeals) is correct in not relying upon such a decision. 28. Revenue has also argued that the food category description in Appendix A of the FSSAI Regulations clarifies that the beverages based on fruit and vegetable juices are to be classified under food categories 14.1.4.2 whereas carbonated beverages fruit juice, such as, one being imported by the respondent are covered under 14.1.4.1. A perusal of Appendix A of the FSSAI Regulations shows that it is a Food Category System. It states that the food category system is a tool for assigning food additive uses in the Regulations. It applies to all food stuffs. The food category descriptors are not to be legal product designations nor are they intended for labelling purposes. Thus, essentially, it is a system of classification to show which preservatives can be used in what kinds of foods. In our view, this is not relevant for the classification of the products under the Customs Tariff. 29. It was also argued by the Revenue that the Commissioner (Appeals) has erred in relying on the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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