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TMI Blog2025 (1) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue is no longer res-integra has the same has been decided in various judgments as follow: - * Neuvera Wellness Venture P. Ltd V/s Commissioner of Customs Mundra vide final order No. 12343/2023 dated 20.10.2023 * Bright Performance Nutirtion V/s. Commissioner of Customs Mundra -2024 (3) TMI 936 CESTAT Ahmedabad * Raptakos Brett & Co. Ltd. Vs. Commissioner of Central Excise, Raigad- 2014 (307) ELT 565 (Tri.- Mumbai) * ARC Distributors V/s. Commissioner of Customs, Mundra- 2024 (5) TMI 338 CESTAT Ahmedabad 2.2 He Further submits that show cause notice is time barred inasmuch as all the material particulars about the description and classification of goods were duly declared by the appellant in the bill of entry & the same have been duly accepted. He also submits that the show cause notice was issued not only after expiry of 02 years from the date of assessment but also after expiry of 02 years of the audit observation. The show cause notice was issued without conducting any inquiry or investigation and without bringing on record any means rea or positive act committed by the appellant. Moreover, any amount of IGST paid by the appellant would have translated into accrual of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule IV, (v) 3 per cent. in respect of goods specified in Schedule V, and (vi) 0.25 per cent. in respect of goods specified in Schedule VI appended to this notification (hereinafter referred to as the said Schedules), that shall be levied on inter-State supplies of goods, the description of which is specified in the corresponding entry in column (3) of the said Schedules, falling under the tariff item, subheading, heading or Chapter, as the case may be, as specified in the corresponding entry in column (2) of the said Schedules. Schedule III- 18% S. NO. Chapter / Heading/Sub heading/Tariff Item Description of Goods (1) (2) (3) 23. 2106 All kinds of food mixes including instant food mixes, soft drink concentrates, Sharbat, Betel nut product known as "Supari", Sterilized or pasteurized millstone, ready to eat packaged food and milk containing edible nuts with sugar or other ingredients, 75[Diabetic foods, Custard powder; [other than batters including idli/dosa batter, Namkeens], bhujia, mixture, chabena and similar edible preparations in ready for consumption form 453 Any Chapter Goods which are not specified in Schedule I, II, IV, V or VI Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup kg. 150% - 21069050 --- Compound preparations for making non-alcoholic beverages kg. 150% - 21069060 --- Food flavouring material kg. 150% - 21069070 --- Churna for pan kg. 150% - 21069080 --- Custard powder kg. 150% - --- Other : 21069091 ---- Diabetic foods kg. 150% - 21069092 ---- Sterilized or pasteurized millstone kg. 150% - 21069099 ---- Other kg. 150% - From the above tariff entry, it can be seen that the entry covers various food preparation not elsewhere specified or included. However, out of the many items provided under tariff item 2106, the serial No. 9 described only some of those goods. This also establish that Serial No. 9 is not a general entry which covers entire entry of 2106 but only some of the goods which are specified in the description of goods are provided under serial no. 9 of Schedule IV,. This fact also strengthens the claim of the appellant that their goods are not covered under serial no. 9 of the schedule IV of Notification 1/2017-IGST-Rate and correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99. 20. Under the Notification 120/84-C.E., lubricating oil was exempted without reference to any tariff heading/sub-heading. Consequently, the criteria specified in the Notification were satisfied. That being so, majority view contained in the order of the CEGAT is not sustainable and is set aside. The minority view as expressed is confirmed. The appeals are allowed with no order as to costs." From the above decision, we are of the view that as explained in the above decision the word "that is to say" is "mutatis mutandis" applies in respect of the expression "i.e." in the present case. Accordingly, the word used "i.e." at serial number 9 of schedule IV of Notification (supra) it is fixed, specific and clear that only the description given in such entry shall be covered by serial no. 9. Consequently the goods of the appellant will fall under Serial No. 453 of Schedule III of the Notification 1/2017-IGST, therefore, the demand of differential custom duty shall not sustain. 6. As regard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso find that in judgment in the case Raptakos Brett & Co. Ltd. (Supra) this Tribunal held that in Protein Concentrates the content should be 70% and above. The said judgment is reproduced below:- "5. We have carefully considered the submissions made by both the sides. 5.1 From the labels of the product it is seen that the products are marketed as a protein supplement and contains 30% of protein by weight. Bulk of the product is made up of carbohydrates, which accounts for 48 to 58% of the weight of the product. Therefore, it cannot be said that protein is predominant by weight over other substances. If a product has to be considered as a protein concentrate the minimum concentration that is required would be at least 50% of the weight of the product so that protein predominates over other materials. That is not the fact obtaining in the present case. 5.2 Secondly, as per the expert opinion obtained and produced by the appellant, discussed in Para 3.1 above, and also from the technical literature available on the subject matter, it is seen that, to constitute protein concentrate, at least 70% of protein is required, both, in respect of soya protein products as also milk pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er CETH 2106 90 99 is more appropriate. 6. In view of the above factual analysis, the appeals succeed. Accordingly, we allow the appeals with consequential relief, if any, in accordance with law." 4.4 However, firstly the consumer product such as Food Supplement even by imagination cannot contain this much high percentage of protein. Secondly, the revenue could not bring any evidence on record to prove the percentage of Protein in the food supplement. Therefore, revenue has no basis to challenge the classification adopted by the assessee. 4.5 As regard the goods namely "Food Flavouring Material", revenue contended that the said entry is appearing at Sl. 9 of Schedule IV of Notification No. 01/2017- Integrated Tax (Rate) dated 28.06.2017. On scrutiny of records and the products leaflets available in appeal papers, we did not find any product which bears the name Food Flavouring Materials. There may be Food/Health supplement products containing miniscule percentage of food flavour which does not mean the said goods itself is food flavour material, therefore, we do not agree with the department's contention on this point. 4.6 The appellants have also submitted that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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