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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 ..... ame is covered under Serial No. 454 of Schedule iii for the purpose of charging the IGST - In view of the above judgment, the issue being identical is no longer res-integra. Accordingly, the assessee imported good attract 18% IGST and not 28%. Food supplement - HELD THAT:- It is found that the goods are ready to human consumption. Department seeks to classify under CTH 21061000 as Protein Concentrates and Textured protein substances. By description itself it appears that Protein Concentrates cannot be fit for human consumption. At the most Protein Concentrates can be categorized as input for making Protein based food/Health supplement. The department has neither got the goods tested nor adduced any evidence to establish the exact nature of the goods that whether the same is Protein Concentrates or otherwise. Therefore, the burden cast on the revenue in the matter of classification of goods has not been discharged. For this reason, itself as per settled legal position on this point, the case of department clearly fails. Food Flavouring Material - HELD THAT:- On scrutiny of records and the products leaflets available in appeal papers, it is not found any product which bears the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an equivalent amount of Input Tax Credit with appellant for making tax payment on further supply of the same goods to customers. As such, the appellant had nothing to gain by deliberately resorting to wrong classification with an intent to pay a lesser IGST. Notwithstanding this, it is an admitted position that the appellant had correctly described the goods in the bills of entry and hence, wrong classification, per se, without any positive evidence available on record, cannot result in invocation of extended period for demanding duty and imposition of mandatory penalty upon the appellant. 2.3 He submits that in view of the above submission, the appeals filed by the assessees deserve to be allowed. 3. Shri Sanjay Kumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 IV 28% S. NO. Chapter / Heading/Sub heading/Tariff Item Description of Goods (1) (2) (3) 9. 2106 Food preparations not elsewhere specified or included i.e. Protein concentrates and textured protein substances, Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and maltodextrine syrup, Compound preparations for making non-alcoholic beverages, Food flavouring material, Churna for pan, Custard Powder 5. The department seeks to apply serial No. 9 of the aforesaid Notification. From the entry of Serial No. 9 there are certain specific items which are covered in the description of goods under Serial No. 9 wherein the impugned goods of the appellant are not appearing, therefore, in our view, the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 correctly falls under Serial No. 453 according to which the rate of IGST is 18%. As regard, the misinterpretation made by both the lower authorities on the word i.e. , the appellant have relied upon the judgment in the case of Castrol India Limited (supra) wherein the Hon'ble Supreme Court dealing with the meaning of that is to say held as under: 16. In Stroud s Judicial Dictionary, 4th Edition, Vol. 5, at page 2753, we find : That is to say is the commencement of an ancillary clause, which explains the meaning of the principal clause. It has the following properties : (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley v. Butler Hob, 1971 . The quotation, given above, from Stroud s Judicial Dictionary shows that, ordinarily, the expression that is to say is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 1/2017-IGST, therefore, the demand of differential custom duty shall not sustain. 6. As regard the submission of the learned Counsel on the demand being time barred, we find that there is no dispute that the physical assessment of bill of entry was made by the proper custom officer and the appellant have declared the goods correctly as per the documents and claimed the exemption of IGST rate in terms of Serial No. 23 and 453 of Schedule III of Notification 1/2017. Had the officer of the different view as raised in the present case, the show cause notice could have been issued immediately on assessment or objection chould be raised at that time itself. However in the present case for the clearance for the period July 2017 to November 2017, the show cause notice was issued on 09.07.2022. As per the facts narrated above, since there was no suppression of fact on the part of the appellant, the demand is also hit by limitation. We find force in the submission of the learned counsel that whatever IGST needs to be paid by the appellant, it was available as an input tax credit to them, therefore, the present case is involved revenue neutrality. Accordingly, the malafide intention can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of protein is required, both, in respect of soya protein products as also milk protein products. In the present case, the protein content is only 30% and nowhere near to 70% as mentioned in the technical literature. The expert opinion and the technical literature relied upon by the appellant has not been rebutted in a meaningful way by the Revenue nor any contrary opinion has been produced by the Revenue in support of their contention. As per the technical literature available, even skimmed milk powder contains 33% to 37% of protein and full cream milk powder contains 23% to 27% of proteins, but we do not classify milk powder as a protein concentrate. 5.3 As regards textured protein products, textured food is based on spun proteins in which inexpensive vegetable proteins can be made to stimulate meat. The process adopted to obtain such textured product is spinning and extruding. In the present case, from the manufacturing process adopted by the appellant, these processes are not undertaken and, therefore, it cannot be said that the impugned goods are textured protein substances. 5.4 It is a settled position in law, that it is for the Revenue to lead evidence in classification mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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