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TMI Blog2023 (11) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... India and to quash the same and to direct the 2nd respondent to classify "flavoured milk" under HS Code 0402 in terms of decision of the Hon'ble Supreme Court ancillary and collect Goods And Service Tax. 3. In W.P.No.16613 of 2020, the petitioner has prayed for a Writ of Mandamus directing the 2nd respondent to classify the goods under Chapter 0402 in accordance with the binding precedent in Commissioner Vs. Amrit Food reported in 2015 (324) ELT 418 (SC) and levy GST accordingly. 4. Relevant portion of the impugned decision of the 3rd respondent GST Council in its Minutes of Meeting dated 22nd December, 2018 classifying "flavoured milk" under HS Code No. 2202 reads as under:- Sl. No. Description HSN Present GST Rate (%) Requested GST Rate (%) Comments 18. Flavoured Milk 2202 12% Clarification that it is classifiable under Chapter 4 1.The Explanatory Notes to HSN describe the goods classifiable under the heading 0402 as under: This heading covers milk (as defined in Note 1 to this Chapter) and Cream, whether or not pasteurised, sterilised or otherwise preserved, homogenised or peptonised; but it excludes milk and cream which have been concentrated or which cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ream which have been concentrated or which contain added sugar or other sweetening matter (hearing 04.02) and curdled, fermented or acidified milk and cream (heading 04.03). The products of this heading may be frozen and may contain the additives referred to in the General Explanatory Note to this Chapter. The heading also covers reconstituted milk and cream having the same qualitative and quantitative composition as the natural products. 2. Flavoured milk is classifiable under HS code 2202. 3. Fitment Committee does not recommend issuance of such clarification. The above also supports the classification of the 'flavoured Milk' under CTH 22029930 6.8 The applicant has relied on the FSSAI regulations and has claimed that the product is a milk and to be classified under CTH 04. We find the classification as available in the Customs Tariff is aligned with the International convention based on Harmonised system of Nomenclature. The product is specifically covered under a specified heading. When this being the fact, there appears to be no relevance to import the ingredients from another legislation/Act. Constitution Bench of the Apex Court in Hari Khemu Gawali v. Deputy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore not covered as 'Milk' under CTH 0402. Further, the products do not lack any natural constituents and further no natural milk constituents are added to it and therefore, are not covered under CTH 0404 also. Thus we find no infirmity in the findings of the lower authority that the product in hand do not fall under Chapter 4 of the Customs Tariff, though the product is categorized under Dairy products and analogues under FSSAI Regulations, 2011. 9.1 The product in hand is a 'ready to drink' product. The appellant has contended that their product though is ready to drink, it is Milk, being a dairy produce in which additions as admissible under the GMP as allowed under the FSSAI Regulations are only added and has further contended that to be a 'Beverage', the product should have 'water' as the dominating ingredient. In this connection, we find that the National Dairy Development Board as seen in the page https://www.nddb.coop/services/ppd/dairyproducts/b everages holds 'Flavoured Milk' as a Dairy based Beverage. The same is given as under : Dairy based Beverages MILK BEVERAGE WITH RAGI A preparation of ragi (finger millet) in milk is a refreshing and satiating drink ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the dictionary definition is 'any type of drink except water'. Thus, it becomes evident that the product in hand is a Beverage. 9.2 Chapter 22 of Customs Tariff covers 'Beverages, Spirit and Vinegar'. Tariff Heading 2202 covers - Waters, including Mineral Waters and Aerated Waters, containing added sugar or other sweetening Matters or Flavoured, and Other Non-alcoholic Beverages, Not including Fruit or Vegetable Juices of Heading 2009. Thus, this heading covers waters under CTH 2202 10 and other Non-alcoholic Beverages other than Non-alcoholic Beer under CTH 2202 99. The relevant tariff items are given below : 2202 99 - Other : 2202 99 10 --- Soya milk drinks, whether or not sweetened or flavoured 2202 99 20 --- Fruit pulp or fruit juice based drink 2202 99 30 --- Beverages containing milk 2202 99 90 --- Other The relevant Explanatory Notes as per HSN is as below : (B) Other non-alcoholic beverages, not including fruit or vegetable hikes of heading 20.09. This group includes, inter alia : (1) Tamarind nectar rendered ready for consumption as a beverage by the addition of water and sugar and straining. (2) Certain other beverages ready for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter 4 - In the case at hand, the product is outside the purview of CTH 0402 not because of the addition of the flavour but of the fact that as per Chapter Note 1 to Chapter 4, the 'Milk' is not full cream Milk or Skimmed Milk and therefore not applicable. (a) The decision in the case of Cavinkare Private Limited v. Commissioner of Central Excise do not have a precedent value as per Section 35R of the Central Excise Act, 1944 and (b) In the case of Nestle India Ltd. v. CCE, New Delhi, the classification dispute was between 0404 and 1901. " 'NESCLAC Nutritious Milk Drink' being a baby milk powder based drink which is not comparable with the product" (2) The product in question is essentially milk and deserves to be classified under Chapter 4 - (a) Gujarat Coop Milk Marketing Federation Ltd. v. State of U.P. [2017 (5) G.S.T.L. 351 (All.)] - The decision is a VAT case and is on the exemption to be extended based on the wordings of the description & the listing of products under VAT laws of U.P. is different from the Tariff Classification. (b) Karnataka Co-operative Milk Producers Federation Ltd. - The decision of AAR has been declared as void ab initio by the appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but cannot determine the classification of goods or services. It is submitted that "flavoured milk" was naturally classifiable under Heading 0402. 11. Arguing on behalf of the petitioner, the learned Senior Counsel submitted that the issue was settled long before in the context of Central Excise Act, 1944 and Central Excise Tariff Act, 1975 by a series of decision rendered by the Tribunal and Hon'ble Supreme Courts. In this connection, decisions of the Courts and Tribunal's in the following cases were invited:- (i)Vadilal Chemicals Ltd., Vs. State of AP and others, [(2005) 6 SCC 292]; (ii)Ramavatar Budhaiprasad, ETC Vs. Assistant Sales Tax Officer, Akola and another, [AIR 1961 SC 1325]; (iii)Indian Aluminium Cables Ltd. Vs.Union of India, [1985 (21) E.L.T.3(S.C.)]; (iv)Collector of Customs, Madras Vs. Lotus Inks, [(1997) 10 SCC 29]; (v)CCE Vs. Wood Craft Products Ltd., [1995 (77) ELT 23 (SC)]; (vi)Indodan Milk Products Ltd., Vs. Commissioner of Sales Tax, U.P., [(1974) 33 STC 381 (ALL)]; (vii)Commissioner of Central Excise Vs. Amrit Foods, [2015 (324) E.L.T. 418 (S.C.)]; (viii)Nestle India Limited Vs. Commissioner of Central Excise, Delhi, [2017 (6) G.S.T.L. 483 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same and the license had amended with addition of manufacturing of "flavoured milk" under the category of dairy products. 15. Therefore, it is submitted the above facts clearly establish that the Government of India has considered "flavoured milk products" as dairy products in its policies. 16. The learned counsel for the respondent submits that there is no merits in the present writ petition. He submits that the present writ petition is devoid of merits and is liable to be dismissed. It is submitted that the decision that were rendered in the context of Central Excise Act, 1944 and Central Excise Tariff Act, 1975 are totally wholly irrelevant. It is submitted that the ratio rendered therein cannot be imported in the context of the classification of goods under the above notification under GST regime. That apart, it is submitted that the issue relating to rate of duty was the subject matter of the Minutes of the Meeting of the GST Council held on 22.12.2018. 17. A request was placed regarding change in the rate of tax and in the said meeting and it was unanimously decided by the GST Council to continue the rate that was fixed at the time of inception vide Sl.No.50 to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (vi)Danone Foods and Beverages (I) Pvt. Ltd., 2012 (280) E.L.T. 563 (A.A.R.); (vii)Sri Chakra Milk Products LLP., MANU / AI / 0129 / 2019; (viii)Vadilal Industries Ltd., 2021 (54) G.S.T.L. 59 (A.A.R. - GST - Guj.); (ix)Tirumala Milk Products Pvt. Ltd., MANU / AI / 0063 / 2021; (x)Britannia Industries Ltd., 2022 (56) G.S.T.L. 36 (App. A.a.R. - GST - T.N.) and (xi)Gujarat Co-operative Milk Marketing Federation Ltd., MANU / AR / 0285 / 2022. 22. It is submitted that the decision of the Hon'ble Supreme Court in Commissioner Vs. Amrit Food, 2015 (324) ELT 418 was rendered in the context of Ist Schedule to the Central Excise Tariff Act, 1985. It is submitted that till 27.2.2005, "flavoured milk" was specifically classifiable under Tariff Heading 04.01 and under sub-heading 0401 .11 and attracted 'NIL' rate of duty. It is submitted that with effect from 28.2.2005, after 8 digit code system was introduced in the Central Excise Tariff Act, 1985, all the Headings, in the chapters underwent a sea change in tune with Harmonized System of Nomenclature (HSN). 23. The learned counsel for the respondent has also drawn attention to the Notification No.3/2005-CE dated 24.02.2005 as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 and Customs Tariff Act, 1975. I have also perused the Notifications issued under these enactments relating to classification and fixation of rate of duty of "flavoured milk" as "Beverage Containing Milk". I have also considered the provisions of the respective GST enactment of 2017. I shall refer to them in the ensuing paragraphs. 29. I shall now proceed to answer the point in question namely whether the petitioner is justified and questioning the wisdom of the GST Council whose decision has been accepted by the Authoritty for Advanced Ruling In Re:Britannia industries Ltd. GST in 2022 (56) GSTL 36 (App AAR GST-TN). 30. Goods falling in the First Schedule to the said Notification attracts 2.5% GST. On the other hand, the 3rd respondent GST Council in the impugned Minutes of the Meeting dated 22.12.2018 has classified "Flavoured Milk" under Chapter Heading 2202 90 30 of the Customs Tariff Act, 1975. Sl.No.8 to the First Schedule deals with goods falling under Heading 0402 namely "Milk and cream, concentrated or containing added sugar or other sweetening matter, including skimmed milk powder, milk food for babies [other than condensed milk]". Sl.No.50 to Second Schedule to Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces tax, as the Council may decide." 34. The Hon'ble Supreme Court has also taken this view in its recent decision in Union of India versus Mohit Mineral Private Limited (2022) 10 SCC 700. A reference is made to the Summation/conclusion of the Hon'ble Supreme Court in the above case. Paragraph 171 of the decision of the Hon'ble Supreme Court is reproduced below:- "171. Based on the above discussion, we have reached the following conclusion: 171.1. The recommendations of the GST Council are not binding on the Union and States for the following reasons: 171.1.1. The deletion of Article 279B and the inclusion of Article 279(1) by the Constitution Amendment Act 2016 indicates that the Parliament intended for the recommendations of the GST Council to only have a persuasive value, particularly when interpreted along with the objective of the GST regime to foster cooperative federalism and harmony between the constituent units. 171.1.2. Neither does Article 279A begin with a non-obstante clause nor does Article 246A state that it is subject to the provisions of Article 279A. The Parliament and the State legislatures possess simultaneous power to legislate on GST. Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsurance, etc. in a CIF contract, a separate levy on the Indian importer for the 'supply of services' by the shipping line would be in violation of Section 8 of the CGST Act." 35. For levy of Customs Duty under the provisions of the Customs Act, 1962 and Central Excise Duty under the provisions of the Central Excise Act, 1944, the Parliament has enacted the Customs Tariff Act, 1975 and Central Excise Tariff Act, 1985. The respective Tariff enactments prescribes and prescribed the rates under the First Schedule to the respective Tariff enactments. There is however no stand alone enactment for fixing rate of tax under the present regime as under the Central Excise Act, 1944 and Customs Act, 1962. 36. Rates of tax under the Customs Tariff Act, 1975 and Central Excise Tariff Act, 1985 could be reduced by the Central Government in public interest by notifications issued under Section 5A of Central Excise Act, 1944 and under Section 25 of the Customs Act, 1962. 37. By Notifications issued under Section 11C of the Central Excise Act, 1944 and under Section 28A of the Customs Act, 1962, by the Central Government could also grant special exemptions on account of trade practice. 38. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (iv) The rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification." 44(A).For comparision, they are reproduced below in the following table:- Explanation (iii) Explanation (iv) (iii) Tariff item", "sub-heading" "heading" and "Chapter" shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). (iv) The rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of this notification. 45. Thus, the rule of interpretation of First Schedule to the Customs Tariff Act, 1975 (51 of 1975), including the Section and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or containing added sugar or other sweetening matter, including skimmed milk powder, milk food for babies [other than condensed milk]. Beverage Containing Milk. Rate of Tax 2.5% 6% 52. The decision of the Hon'ble Supreme Court in Commissioner Vs. Amrit Food, 2015 (324) ELT 418, was rendered in the context of Tariff Entries in the Central Excise Tariff Act, 1985. It is no longer relevant. 53. The rival entries which fell for consideration in Commissioner v. Amrit Food - 2015 (324) E.L.T. 418 (S.C.) are Tariff Heading 04.04 and Tariff Heading 19.01 of the Central Excise Tariff Act, 1985, read as under:- 04.04 Other dairy produce, edible products of animal origin, not elsewhere specified or included 19.01 Malt extract, food preparations of flour, 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 heading Nos. 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. - Ghee : Put up in unit co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant-Revenue is that since stabilizer is added while preparing 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 natural milk constituents, whether or not containing added sugar or other sweetening matter or flavoured or containing added fruit or cocoa and includes fats and oils derived from milk (e.g. milkfat, butterfat and butteroil), dehydrated butter and ghee." 9. From the aforesaid Note 4, it is argued that stabilizer is not mentioned therein and therefore, addition of stabilizer while making the aforesaid preparation would take it out from Heading 04.01. Thus, it needs to be determined as to whether the addition of stabilizer would make it a food preparation and therefore, it would no more remain diary produce and would be covered under Heading 19.01. 13. Insofar as Chapter Note 4 on which reliance is placed by the learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 90 30 was inserted into the First Schedule to Chapter 22 of the Central Excise Tariff Act, 1985 for classification of "Beverages Containing Milk". With effect from 28.02.2005, Heading 0401 read as under:- Tariff Item Description of goods Unit Rate of Duty (1) (2) (3) (4) 0401 0401 10 00 0401 20 00 0401 30 00 Milk and cream, not concentrated nor containing added sugar or other sweetening matter - Of a fat content, by kg. weight, not exceeding 1%: - Of a fat content, by. Weight, exceeding 1% but not exceeding 6% - Of a fat content, by weight, exceeding 6% Kg. Kg. Kg. Nil Nil Nil 58. The Notifications that were issued by the Central Government under Section 5A of the Central Excise Act, 1944 classified "Flavoured Milk" under Sub Heading 2202 90 30. Sl. No.11A to Notification No. 03/2005-CE dated 15.6.2007 as amended by Notification No.28/2007-CE dated 15.06.2007 prescribed "Nil" rate of duty on "Flavoured Milk of Animal Origin". 59. Sl.No.11A to Notification No.03/2005-CE dated 15.06.2007 was later deleted by Notification No.15/2011-CE dated 01.03.2011. Eventually, Notification No.03/2005-CE dated 15.06.2007 was later superceded by Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2007 Jute twine 5607 90 90 1st Jan, 2007 to 14th June, 2007" 2. Now, therefore, in exercise of the powers conferred by section 11C of the said Act, the Central Government hereby directs that the whole of duty of excise leviable under the said Act on such goods falling under such tariff1 sub-heading as described above but for the said practice, shall not be required to be paid for the period detailed in column 3 above, subject to fulfilment of condition that the benefit under this notification shall not be admissible unless the unit claiming benefit in terms of this notification reverse the input credit, it any, taken in respect of inputs used in manufacture of such goods on which the said duly of excise was not levied during the aforesaid period in accordance with the said practice. [Notification No. 17/2008-C.E. (N.T.), dated 27-3-2008]" 63. Before the Tribunal in Amrit Food Vs. Commissioner of Central Excise, 2003 (153) ELT 190 (T), the order dated 07.08.2001 of the Commissioner of Central Excise Meerut was in question. Thus, it is clear in Commissioner of Central Excise Vs. Amrit Food, 2015 (324) ELT 418 (SC) was concerned with the Central Excise Tariff as it stood p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1985, wherein stabilizers were not specifically mentioned and thus, the authority contended that it is not a permitted ingredient in products classifiable under Tariff Heading 0404. However, the Tribunal ruled in the favour of the assessee relying on the decision of Nestle India Limited (supra). It is pertinent to note that the aforesaid decision has been affirmed by the Hon'ble Supreme Court, as reported (2015) 324 ELT 418 (S.C.). Thus, even when the stabilizers were not specifically mentioned in the Chapter Note 4 of the Central Excise Tariff Act, still the milk shake mixes containing the same were held classifiable under the Tariff Heading 0404 by CESTAT as well as the Hon'ble Supreme Court on the ground that stabilizers do not interfere with basic characteristics of the milk products and are added merely to impart stability to the product. The same analogy can be drawn in the present case where flavouring agent of 0.03% of the total composition is added, which does not change the basic characteristic of the product and the product remains a nutritious milk drink only." 67. The Tribunal in Nestlé India Ltd versus Commissioner of Central Excise, New De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "43. In common understanding "flavoured milk" is a form of milk and is not a derivative of a milk or a milk product. It is like hot or cold milk which remains a milk even if sugar is added to it. It does not lose its basic characteristic of the milk by heating or cooling or on addition of sugar or any permitted colour, essence or flavour. The addition of permitted colour or flavour does not transform the milk into any other thing." 71. Interpreting Entry No.30 to Notification No.51-5785 dated 07.09.1981, the Court there took a peculiar view. It reads as under:- "44. The notification dated 7-9-1981 only lays down the rate of tax applicable to milk powder, condensed milk, baby milk,baby foods and all other food stuffs or products used in the natural form or by mixing them with any other stuff or beverages and when sold in sealed or tinned containers. It is not a notification issued under a charging section but under a provision for prescribing rates of tax on different goods. Therefore, it does not purport to tax anything in addition to that which is already taxable or is exempted from tax. It does not specifically provide to levy tax on flavoured milk which is a form of milk whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any longer relevant for the relief that has been sought for. In the present case what the petitioner is attempting to do is to over turn the decision of the Authority for Advance Ruling in the case of In Re:Britannia industries Ltd. 2020 (36) GSTL 582 (AAR-GST-T.N.). 78. At the same time, I am of the view that "Flavoured Milk" that was proposed to be manufactured by the petitioner at the time of institution of the Writ Petition has to be still classified under Tariff Heading 0402 of the Customs Tariff Act, 1974 and is therefore liable to Central Tax at 2.5% in terms of Entry 8 to First Schedule to Notification No.1/2017-CT(Rate) dated 28.06.2017. 79. Note 1 to Chapter 4 of the Customs Tariff Act, 1975 defines the expression 'milk' as follows:- "CHAPTER 4 Dairy produce; birds' eggs; natural honey; edible products of animal origin, not elsewhere specified or included Notes: 1. The expression "milk" means full cream milk or partially or completely skimmed milk." 80. Note 4 to Chapter 4 excludes the following:- "4. This Chapter does not cover: (a) products obtained from whey, containing by weight more than 95% lactose, expressed as anhydrous lactose calculated on the dry ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as detailed below:- Heading Tariff Item Tariff Item 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 Sub Heading Description of goods Sub Heading Description of goods 2202 10 - Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured: 2202 90 - Other: 2202 10 10 --- Aerated waters..... 2202 90 10 ---Soya milk drinks, whether or not sweetened or flavoured..... 2202 10 20 --- Lemonade ....... 2202 10 90 - Other 2202 90 20 --- Fruit pulp or fruit juice based drinks .... 2202 90 30 --- Beverages containing milk... 2202 90 90 --- Other .......... 87. Heading 2202 of the Customs Tariff Act, 1985 can be divided into two parts namely:- (i) Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured; and (ii) other non-alc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in Sub Heading 2202 90 of the Customs Tariff Act, 1985. 95. In the Prabhudas Damodar Kotecha v. Manhabala Jeram Damodar, (2013) 15 SCC 358, the Hon'ble Supreme Court held that the principle of "Nocitur - a Sociis", that the words must take colour from words with which they are associated. The meaning of the expression "Beverage Containing Milk" has to be there be ascertained from similar products under the heading 2202 90 of Customs Tariff Act, 1975. 96. By applying the principle of "Nosciter - a sociss" , the meaning of the expression "Beverage Containing Milk" has to be ascertained from the other items in Sub Heading 2202 90 of the Customs Tariff Act, 1975. The expression "Beverage Containing Milk" appears along with "soya milk drink", fruit pulp or fruit juice. 97. If the principle of "Nosciter - a sociss" is applied, the expression "Beverage Containing Milk" in Sub Heading 2202 90 30 of the Customs Tariff Act, 1975 can include only such beverage containing plant/seed based milk which incidentally contain alcohol of specified strength by volume not exceeding 0.5 vol. 98. The provisions of the Food Safety and Standards Act, 2006 and the Food Safety & Standards (Food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... water for use in reconstitution or recombination (b) Permitted ingredients. - (i) Sugar or other nutritive sweeteners or both; (ii)Other non-dairy ingredients like nuts (whole, fragmented or ground), cocoa solids, chocolate, coffee, fruits and vegetables and products thereof including juices, purees, pulps, preparations and preserves derived therefrom, cereals, and cereal products and cereal based extracts, honey, spices, condiments, salt, and other natural flavouring foods and flavours; (iii) Potable water. (c) Composition. - Flavoured Milk shall have the same minimum percentage of milk fat and milk solidsnot-fat as that of the milk, as provided for in the Standard for Milk, from which it is prepared. 3. Food Additives. - For products covered under this standard, specific food additives specified in Appendix 'A' of these regulations may be used and only within the limits specified. 4. Contaminants, Toxins and Residues. - The products shall comply with the Food Safety and Standards (Contaminants, toxins and Residues) Regulations, 2011. 5. Hygiene. - (a) The products shall be prepared and handled in accordance with the requirements specified in Schedule 4, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mp milk, sunflower milk, or pseudo cereal based milk such as quinoa milk, teff milk, amaranth milk, etc. 106. It has to be therefore construed that "Beverage Containing Milk" will not include flavoured milk made out of dairy milk. "Beverage Containing Milk", "Non-Alcoholic Beverages" can include only plant / seed based "Milk". 107. In my view, "Beverage Containing Milk" can include only such "beverage" containing seed based, fruit based or plant based milk. It will not extend to "Dairy Milk" from milch cattle. "Beverage Containing Milk" from dairy animals cannot come within the purview of subheading 2202 90 30 as "Beverage Containing Milk". In view of Tariff Heading 2202 read with Chapter Note 3 to Chapter 22 of the Customs Tariff Act, 1975. 108. Therefore, "Beverage Containing Milk" will apply only to fruit / seeds of plant milk and not to dairy milk. "Milk" in "Beverage Containing Milk" has to be plant or seed based milk and not milk from milch cattle or milk from dairy animals, as such milk is not grouped together with other milk. 109. To sum up till 2005, flavoured milk was specifically classified within the purview of Heading 0404 of the Central Excise Tariff Act, 1985, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 4A of the Central Excise Act, 1944. 115. Since these Notifications classified "Flavoured Milk" / "Flavoured Milk of Animal Origin" as "Beverage Containing Milk" under Sub-Heading 2202 90 30 of the Central Excise Tariff Act, 1985 and were never contested by Assessees, as they benefited them, it cannot mean "Flavoured Milk" infact did fall under Heading 2202 of the Customs Tariff Act, 1975. 116. These classifications adopted in the respective Notifications issued by the Central Government under the older regime under Central Excise Act, 1944 r/w Central Excise Tariff Act, 1985 are not relevant for determining the correct classification under the new regime. "Flavoured Milk" has to be classified only under Heading 0402 of the Customs Tariff Act, 1975 and not under Heading 2202 of the Customs Tariff Act, 1975 for the reason mentioned above. 117. Therefore, I am of the view that although the contention of the petitioner for the relief based on the decision of the Hon'ble Supreme Court in Commissioner versus Amrit Food 2015 (324) ELT 418 cannot be accepted, nevertheless, the petitioner is entitled to relief. "Flavoured Milk" that was proposed to be manufactured at the time of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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