9911796707
TMI Blog2025 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... only "Protein Concentrates and textured Protein Substance" which are enriched of protein and therefore, only the goods namely "Protein Concentrates" are classifiable under CTH 21061000. However, the other food items such as "Protein Enriched Food Supplements" like "Whey Protein, Protein Food Supplements" are more appropriately classifiable under CTH 21069099. Thus, the department has entertained a view that Mass Weight Gainer-Nutrition Supplement" is more properly classifiable under 21069099 and therefore, the classification of the subject goods declared by the importer as CTH 21061000 should be rejected and the bills of entry are to be re-assessed in terms of the provisions of the Section 17 of the Customs Act,1962. A show cause notice dated 25.01.2023 came to be issued demanding differential amount of the customs duty as well as change in classification of imported product from CTH 21061000 to CTH 21069099 of the Customs Tariff Act. The matter got adjudicated vide impugned order-in-original dated 03.11.2023 wherein all the charges has invoked in the show cause notice have been confirmed by the Adjudicating Authority. The appellant are before us against the above mentioned impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate' powder may include other ingredients such as added sugars, artificial flavoring, thickeners, vitamins and minerals. It has been pointed out that the amount of protein per scoop can vary from 10 to 50 grams and even if protein content varies between 10 to 50 grams, the same is called a protein concentrate in commercial parlance and same is used for body building and as a food supplement. 2.4 It has further been submitted that this can be appreciated from the Labels used on these products that the said powders do essentially contain "Whey protein concentrate" and other nutrients and flavouring materials. These powders are marketed in retail as "weight gainers/mass gainers" which is essentially a function of "protein". Though the said powders also contain other substances viz. carbohydrates, other nutrients or flavouring materials, but the fact remained that the product is nothing but protein concentrate which gives them the essential characteristics and marketability. In these circumstances, it is submitted that applying the principles enunciated under Rule 2(b) and also 3(b) of General Rule of Interpretation of the Customs Tariff, the goods confirm to the specific description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Hyderabad v. Bakelite Hylam Ltd. (1997 (91) E.L.T. 13 (S.C.)] it was held that even the Decorative Laminate Sheets contained 60-70% paper, 30-40% resin, the essential character was determined by the presence of resin, though numerically in lesser quantity, by applying the rule 3 (b) of the GRIs. This case was followed in Collector of Central Excise, Ahmedabad v. Jai Laminates Ltd. (1997 (93) E.L.T. 368 (Tribunal)), which was also affirmed in the Hon'ble Supreme Court in Jai Laminates Ltd. v. Collector [1997 (93) E.L.T. 368 (Tribunal)]. The ratio of Hon'ble Tribunal Order in Rana Enterprises v. Commissioner of Customs, Mumbai (2011 (267) E.L.T. 546 (Tri. Mumbai)) is that classification has to be determined by essential character test and not by percentage of composition. Further, even in value terms, the 'essential character' of the imported products consists of high quality concentrated proteins and amino acids and not carbohydrates. One cannot go by just comparative weight of the constituents. The expression used is not "main ingredient", but "essential character". 2.6 It is humbly submitted that recently in case of M/s Glanbia Performance Nutrition India P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 484 of 2021 in Para 31 has held that, 31. "...All the elements necessary for assessing the duty are filled in the Bill of Entry itself which is the entry of the goods made under Section 46. Thus, the Bill of Entry has factual elements such as the nature of the goods, quality, quantity, weight, transaction value, country of origin, etc. which all need to be correctly declared and elements which are in the nature of the opinion of the importer such as classification of the goods, exemption notifications which apply, etc. While the facts are verifiable as correct or incorrect, opinions can differ. The importer may find that the goods are classifiable under one CTH while the officer re-assessing the goods may classify them under a different CTH. If appealed against, different views can be taken at different levels of judicial hierarchy from Commissioner (Appeals) all the way up to the Supreme Court. Similar will be the case with the availability of the benefit of exemption notifications. 32. It is impossible for the importer to predict if the proper officer would re-classify the goods and if the proper officer would, after rejecting the transaction value, re-determine the value bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Hon'ble Apex Court in case of Collector of the Central Excise vs. CHEMPHAR DRUGS & LINIMENTS reported under 1989 (40) E.L.T. 276 (SC). It has further been contended that since there was no mis-declaration in the description of the import consignments, therefore, invoking of the Section 111 (m) of the Customs Act, 1962 is also not warranted and legally not sustainable. 3. The Learned Departmental Representative, Shri Girish Nair has reiterated the findings has given in the impugned order-in-original and has relied upon following decisions to support his arguments:- * Judgement of Hon'ble CESTAT, Mumbai in the case of Raptakos Brett & Co Ltd vs Commissioner of C.Ex., Raigad reported at 2014 (307) E.L.T. 565 (Tri.-Mumbai) * Judgement of Hon'ble CESTAT, Principal Bench, New Delhi in the case of Dry Tech Processors (1) Pvt Ltd vs Commissioner of C. Ex., Bhopal reported at 2015 (327) E.L.T 696 (Tri.-Del.) * Judgement of Hon'ble Supreme Court in the case of Union of India vs Jain Shudh Vanaspati reported at 1996 (86) E.L.Τ. 460 (S.C.) 4. Having heard the rival contentions and going through in detail the record of the appeal, we find that following quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classified under CTH 21069099 under the entry "Others" of Chapter Heading 2106 and not under 21061000 which primarily covers "Protein Concentrates and textured Protein Substance". 4.4 Before proceeding further in this matter, it will be relevant to have a glance at the relevant entries under Chapter Sub Heading 2106 of the Customs Tariff Act, 1975:- Tariff Item. Description of goods (1) (2) 2106 Food Preparations Not Elsewhere Specified or Included 21061000 Protein concentrates and textured protein substances 210690 -Other: --Soft drink concentrates : 21069011 --- Sharbat 21069019 --- Other 21069020 --- Pan masala 21069030 --- Betel nut product known as "Supari" 21069040 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup 21069050 --- Compound preparations for making nonalcoholic beverages 21069060 --- Food flavouring material kg. 21069070 --- Churna for pan 21069080 --- Custard powder --- Other : 21069091 --- Diabetic foods 21069092 --- Sterilized or pasteurized millstone 21069099 --- Other 4.5 A perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. 3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewhere specified and supplementary chapter note (6) provides as what kind of the goods will fall under chapter sub heading 21069099, we are opinion that this sub-headings certainly does not cover the food supplement containing protein concentrate. It can be seen that supplementary chapter note (6) provides that only products such as mithais, namkins, chabanas and such kind of the goods are classifiable under CTH 21069099. While holding above view, we also take support of this Tribunal's decision in case of Glambia Performance Nutrition India Pvt Ltd vs. Commissioner of Customs, Mundra reported at (2023)10 Centax 390 (Tri-Ahmedabad):- "43. We have considered the rival submissions. After raising the ground of assessment being provisional and piecemeal finalisation of assessment the appellants have given up this issue. The Ld counsel has sought that the issue of classification may be finalised by the tribunal as is apparent from the submissions recorded in para 30 above. The submission in this regard is reproduced below: "Having said the foregoing, in order to conclude the classification dispute, it is most respectfully prayed before this Hon'ble Tribunal to pass orders on the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone, classification under CTH 3502 and CTH 3504 of Customs Tariff are ousted as they do not relate to food preparations [HSN Explanatory Notes to CTH 3502, Para (1), pg. VI-3502-1; and HSN Explanatory Notes to 3502, Para B (6), pg. VI3504-1] [Compilation, p. 33-34] B.4 Coming to classification under CTH 1901, the impugned goods contain albumin and other protein concentrates which are acting as the base material [Bill(s) of Material, Additional Paper Book, p. 288-287].In other words, the impugned goods are food preparations of having constituent ingredients from CTH 3502 and CTH 3504, and are not food preparations of CTH 0401 to CTH 0404. Thus, it is submitted that the impugned goods do not satisfy the condition of classification under CTH 1901 of Customs Tariff. Furthermore, cocoa used in the food preparation is not defatted cocoa." They have themselves argued that the impugned goods are food preparations having constituent ingredients from CTH 3502 and CTH 3504 and are not food preparations of CTH 0401 to CTH 0404. They have also argued that the impugned goods do not satisfy the condition of classification under CTH 1901 of the Customs Tariff Act. They have also argued that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otein with additives, in different proportions. The other additives to the product can be of various kinds like flavouring agents, stabilisers etc. The argument of the appellant is that the description of Customs Tariff Heading 2106 which reads as under "CHOCOLATE AND OTHER FOOD PREPARATIONS CONTIANING COCOA" is more appropriate classification for the 'Protein Concentrates containing Cocoa' as compared to the Customs Tariff Heading 1806 which reads as under "FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED". While doing so the Ld counsel has totally ignored the Supplementary Note 5(a) to Chapter 21. It is seen that the Supplementary Notes appearing in Chapter 21 distinguish the Chapter 21 of Customs Tariff from the Chapter 21 of the HSN (para 49 below). It is seen that in the entire appeal as well as written submissions the appellant has not dealt with the Supplementary Notes to Chapter 21. The argument of the appellants that while other 'Protein Concentrates' imported by them are classifiable under Customs Tariff Heading 2106 (Sub Heading 2106 1000), the 'Protein Concentrates containing Cocoa' are classifiable under Customs Tariff Heading 1806 (Sub Heading 1806 9040). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me under heading 1806. The assertion is based on the Chapter and heading notes of the HSN to chapter 18 and 21 and some decisions of foreign countries and international bodies. 49. To examine the issue the comparative chart of relevant chapter notes appearing in HSN as compared to those appearing in Customs Tariff is reproduced below COMPARISON OF CHAPTER 21 OF HSN with THE CHAPTER 21 OF THE CUSTOMS TARIFF CHAPTER NOTES OF CHAPTER 21 OF CUSTOMS TARIFF ACT CHAPTER NOTES OF CHAPTER 21 OF HSN MISCELLANEOUS EDIBLE PREPARATIONS NOTES:- MISCELLANEOUS EDIBLE PREPARATIONS CHAPTER NOTES:- 1.- This Chapter does not cover : (a) Mixed vegetables of heading 0712; (b) Roasted coffee substitutes containing coffee in any proportion (heading 0901); (c) Flavoured tea (heading 0902); (d) Spices or other products of headings 0904 to 0910; (e) Food preparations, other than the products described in heading 2103 or 2104, containing more than 20 % by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluscs or other aquatic invertebrates, or any combination thereof (Chapter 16); (f) Yeast put up as a medicament or other products of heading 3003 or 3004; or (g) Prepared enz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. In this Chapter "betel nut product known as Supari" means any preparation containing betel nuts, but not containing any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol. 3. For the purposes of tariff item 2106 90 11, the expression "Sharbat" means any non-alcoholic sweetened beverage or syrup containing not less than 10% fruit juice or flavoured with non-fruit flavours, such as rose, Khus, Kevara, but not including aerated preparations. 4. Tariff item 2106 90 50, inter alia, includes preparations for lemonades or other beverages, consisting, for example, of flavoured or coloured syrup, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juice and intended for use in the manufacture of aerated water, such as in automatic vending machines. 5. Heading 2106 (except tariff items 2106 90 20 and 2106 90 30), inter alia, includes: (a) protein concentrates and textured protein substances; (b) preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs 04.01 to 04.04 containing less than 5% by weight of cocoa calculated on a totally defatted basis, of heading 19.01. (d) Swelled or roasted cereals containing not more than 6% by weight of cocoa calculated on a totally defatted basis (heading 19.04). (e) Pastry, cakes, biscuits and other bakers' wares, containing cocoa (heading 19.05). (f) Ice cream and other edible ice, containing cocoa in any proportion (heading 21.05). (g) Beverages, non-alcoholic or alcoholic (e.g, "crème de cacao"), containing cocoa and ready for consumption (Chapter 22). (h) Medicaments (heading 30.03 or 30.04). The Chapter also excludes theobromine, an alkaloid extracted from cocoa (heading 29.39). 50. The dispute in the instant case relates to classification. For the purpose of classification, the Custom Tariff Act prescribes the general rules of interpretation. Rule 1, 2 and 3 of the said Rules are reproduced below: "Classification of goods in the Nomenclature shall be governed by the following principles: 1. The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only, for legal purposes, classification shall be determined according to the terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be classified basis the condition in which such goods are presented for clearance to the Customs Authorities referred to in para 8 above. He relied on the following (i) Taj Sats Air Catering Ltd. v. CC Ex., Delhi-II, 2016 (334) E.L.T. 680 (Tri-Del.); (ii) Circular 36/2013-Cus. Dated 05.09.2013 We also agree to the proposition referred in para 8 above to the effect that the appropriate classification of goods is determined by following the General Rules for the Interpretation of Import Tariff which must be applied sequentially. We also agree in principle to the proposition that only if classification cannot be made following Rule 1, can resort be made to rule 2, and thereafter only if classification cannot be made by following rule 1 or 2 can a recourse to rule 3 be made, and so on.We also find support for this proposition in the following decisions (i) In the case of CCE Nagpur vs Simplex Mills Co Ltd. 2005 (181) ELT 345 SC Hon'ble Apex Court has observed as follows: "11. The rules for the interpretation of the Schedule to the Central Excise Tariff Act, 1985 have been framed pursuant to the powers under Section 2 of that Act. According to Rule 1 titles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed as follows: "10. Classification under the Harmonised System is done by placing the good under the most apt and fitting sub-heading. This is done by choosing the appropriate Chapter, Heading, and subheading respectively. To facilitate interpretation and classification, each of the 97 Chapters in the HSN contain corresponding Chapter Notes, General Notes, and Explanatory Notes applicable to the Headings and sub-headings within that Chapter. In addition, there are six General Rules of Interpretation applicable to the Harmonised System as a whole. 11. GRI-1 states that the titles of Sections, Chapters, and sub-chapters are provided for ease of reference only. Therefore, they have no legal bearing on classification. Classification is to be effected : (a) according to the terms of the Headings and any relative Section or Chapter Notes; and, (b) provided the Headings or Chapter Notes do not otherwise require according to the provisions thereinafter contained, viz., GRIs 2 to 6. Thus, it is clear from the above that : (i) the Headings, and, (ii) the relative Section or Chapter Notes must be considered before classification is done. Only after this exercise is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities have concluded that by virtue of Note 2(f) of Section XVII, 'relays' manufactured by the appellant are not even classifiable under Chapter Heading 8608, we do not know how the Authorities could fall back upon Rule 3(a) of the General Rules. There is a fundamental fallacy in the reasoning of the Authorities, that Rule 3(a) of the General Rules will apply, especially after they had found that 'relays' are not classifiable under Chapter Heading 8608, on account of Note 2(f) of Section XVII." In all the aforesaid cases, it has been held that when the classification can be made on the basis of Interpretative Rule 1, there is no need to go for rule 2 to 6. 51. The Hon Apex court has held in many cases that if there is a difference between the chapter notes and Section notes of the Customs Tariff and the chapter notes and Section notes appearing in HSN, then those appearing in the Customs Tariff take precedence over those appearing in the HSN. In other words HSN can be relied for the purposes of classification under Customs Tariff only if the HSN is harmonised with the Customs Tariff. (i) We find that Hon'ble Apex Court in the case of Global Healthcare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... traders or persons dealing in that terms understand it and not the technical or scientific sense. Even it may be mentioned that the Hon'ble Tribunal in case Veto Co. v. CCE reported in 1992 (62) E.L.T. 584 (T) in para 6 has held that the goods have to be classified under the tariff schedule according to their popular meaning or as they are understood in their commercial sense and not as per their scientific or technical meaning. While holding so the Hon'ble Tribunal has referred to the observations of the Hon'ble Supreme Court's judgment in case of Plasmac Machine Mfg. Co. Pvt. Ltd. v. CCE reported in 1991 (51) E.L.T. 161 (S.C.) (Para 13)." 11. The aforesaid approach adopted by the Commissioner has been found fault with by the Tribunal. The Tribunal pointed out that there was material difference in the sub-heading 3306.10 in the Indian statute when contrasted with Harmonized Commodity Description and Coding System. Whereas, as per the Tariff Entry 3306.10 in the Excise Act, it is 'tooth powder' and 'toothpaste', under the Harmonized Commodity Description and Coding System, what is mentioned is 'dentifrices'. It is further noticed by the Tribunal that dentifrices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reading : "24. In our considered view, the Tribunal erred in relying upon the HSN for the purpose of marker inks in classifying them under Chapter sub-heading 3215.90 of the said Tariff. The Tribunal failed to appreciate that the entries under the HSN and the entries under the said Tariff are completely different. As mentioned above, it is settled law that when the entries in the HSN and the said Tariff are not aligned, reliance cannot be placed upon HSN for the purpose of classification of goods under the said Tariff. One of the factors on which the Tribunal based its conclusion is the entries in the HSN. The said conclusion in the order of the Tribunal is, therefore, vitiated and, accordingly, set aside. We agree with the findings recorded by the Commissioner (Appeals)." (iii) Hon'ble Apex Court in the case of Camlin 2008 (230) ELT 193 (SC) has observed as follows: "26. In our considered view, the Tribunal erred in relying upon the HSN for the purpose of marker inks in classifying them under Chapter Sub-Heading 3215.90 of the said Tariff. The Tribunal failed to appreciate that the entries under the HSN and the entries under the said Tariff are completely differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble of the Chapter Notes appearing in Customs Tariff and the HSN is reproduced in para 49 above. It is noticed that while the Customs Tariff contains supplementary notes in Chapter 21, there are no such notes in the HSN. While supplementary notes are there in Chapter 21 of the Customs Tariff Act the same are not appearing in the HSN. In the HSN, there are only three chapter notes, which are as follows: "Chapter Notes to Chapter 21 of HSN (Harmonized System of Nomenclature) 1-This Chapter does not cover: (a) Mixed vegetables of heading 07.12; (b) Roasted coffee substitutes containing coffee in any proportion (heading 09.01): (c) Flavoured tea (heading 09.02); (d) Spices or other products of headings 09.04 to 09.10; (e) Food preparations, other than the products described in heading 21.03 or 21.04. containing more than 20% by weight of sausage, meat, meat offal, blood, fish or crustaceans, molluses or other aquatic invertebrates, or any combination thereof (Chapter 16); (f) Yeast put up as a medicament or other products of heading 30.03 or 30.04; or (g) Prepared enzymes of heading 35.07. 2- Extracts of the substitutes referred to in Note 1 (b) above are to be clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumption; (d) powders for table creams, jellies, ice-creams and similar preparations, whether or not sweetened; (e) flavouring powders for making beverages, whether or not sweetened; (f) preparations consisting of tea or coffee and milk powder, sugar and any other added ingredients; (g) preparations (for example, tablets) consisting of saccharin and foodstuff, such as lactose, used for sweetening purposes; (h) pre-cooked rice, cooked either fully or partially and their dehydrates; and (i) preparations for lemonades or other beverages, consisting, for example, of flavoured or coloured syrups, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juices and concentrated fruit juice with added ingredients. 6. Tariff item 2106 90 99 includes sweet meats commonly known as "Misthans" or "Mithai" or called by any other name. They also include products commonly known as "Namkeens", "mixtures", "Bhujia", "Chabena" or called by any other name. Such products remain classified in these sub-headings irrespective of the nature of their ingredients." These supplementary notes appearing in Custom Tariff are not part of the HSN. In this background it is see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tein Concentrate and Textured Protein Substances" would fall under the "heading 2106". It is seen that the sub heading 21061000 of Customs Tariff (just like HSN) specifically covers "Protein Concentrates and Textured Protein Substances", still a chapter supplementary note was introduced to place the 'Protein Concentrate and Textured Protein Substances' under heading 2106. It is noted that the supplementary Note 5(a) does not prescribe that "Protein Concentrate and Textured Protein Substances" would fall under 'sub heading 2106 1000' but it clearly states that "Protein Concentrate and Textured Protein Substances" would fall under 'Heading 2106'. This provision in the chapter notes has been prescribed specifically to place "Protein Concentrate and Textured Protein Substances" under the 'heading 2106'. Any other interpretation would make the said note 5(a) redundant since these goods are as it is covered under sub heading 2106 1000 in the tariff itself. In other words there was no need of the Supplementary Note 5(a) if the goods are already covered under sub heading 2106 1000. Hon'ble Supreme Court in the case of Oswal Agro Mills Ltd. 1993 (66) ELT 37 (SC) has observed as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to reach a conclusion. Therefore, one has to gather its meaning in the legal setting to discover the object which the Act seeks to serve and the purpose of the amendment brought about. The task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathematical formula. It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. It is also idle to expect that the draftsman drafted it with divine prescience and perfect and unequivocal clarity. Therefore, court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result. In Manmohan Das v. Vishnu Das [AIR 1967 SC 643] a Constitution bench held as follows : "The ordinary rule of construction is the provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out." Hon'ble Apex Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff is not harmonized with the HSN, and therefore the conclusions based on HSN cannot be relied when it contradicts prescriptions of the Customs Tariff. (ii) If the classification can be made relying on interpretative Rule 1 there is no need to proceed further on any other Rule. (iii) The Supplementary Note 5(a) clearly provides that Protein Concentrate and Textured Substances would be classified under "Heading 2106". Rule 1 of the General rules of interpretation is reproduced below: "Classification of goods in the Nomenclature shall be governed by the following principles: 1. The titles of Sections, Chapters and sub-Chapters are provided for ease of reference only, for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions: It is seen that it clearly states that 'for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes'. In the instant case Supplementary Note 5(a) clearly provides that Protein Concentrate and Text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty will be 6.4 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/. This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Bruce N. Hadley, Jr. at (646) 733-3029." From the above decision it is apparent that the said authority has held that: (i) Vanilla Whey protein will be classifiable under heading 2106.90.8200 of HTSUS; (ii) The chocolate whey protein powder will be classifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lactalbumen (whey peptides) and whey protein isolate, 1 percent natural and artificial flavors, and less than one percent each of Sucralose, acesulfame potassium, citric acid, and color. 100 percent Whey Gold Standard-Strawberry, containing approximately 78 percent protein, will be put up in 2-, 5-, and 10-pound containers. The Classic Whey- Strawberry product, containing approximately 69 percent protein, will be put up in 2- and 5-pound containers. The applicable subheading for these products will be 2106.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for food preparations not elsewhere specified or included... protein concentrates and textured protein substances This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR. 177)." From the above rulings, it is apparent that the various international rulings are based on harmonized system of nomenclature and have ruled that the "Protein Concentrates" of the kind imported by the appellant are to be classified under heading 21061000 if the same do not contain cocoa. However same product, "Protein Concentrates", if containing coco would be classifiable under 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 565 (Tri.-Mumbai). The Tribunal in this particular case has held as follows:- "5.4 It is a settled position in law, that it is for the Revenue to lead evidence in classification matters and not for the appellant. In Vicco Laboratories case [2005 (179) E.L.T. 17 (S.C.)] the Hon'ble Apex Court held that the "burden of proof that a product is classifiable under a particular tariff head is on Revenue and must be discharged by proving that it is so understood by consumers of product or in common parlance". In the present case, the Revenue has completely failed in this regard. On the contrary, the appellant has led evidences by way of expert opinion and technical literature to show that the products manufactured by them did not come within the category of protein concentrates or textured protein substances. The appellant's products are consumed as such by people who are recuperating from illness and, therefore, it is a ready to eat packaged product. Consequently, the product merit classification under CETH 2106 90 99 and the appellant is rightly entitled to the benefit of Notification 3/2006, dated 1-3-2006. In Wockhardt Life Sciences Ltd. [2012 (277) E.L.T. 299 (S.C.)], the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant date, serve notice on the person chargeable with duty or interest which has not been 11[so levied or not paid] or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice." 4.14 It can be seen that for invoking the provisions of sub section 4 of Section 28, the department needs to establish that the appellant has short paid the duty on account of collusion, any wilful mis-statement or suppression of facts with an intention to evade duty. We find that the description given by the appellant is the same as mentioned on the product as well as on the import document such as invoice, purchase order and other documents accompanying the Bills of Entry. We also find from the show cause notice that the importer has submitted the literature/ brochure related to mass/ weight gainer- food supplement at the time of the import to the customs authorities. Since all the documents have been available before the customs authority at the time of the assessment, examination of the goods, we find that the allegation of the suppression of the facts or mis-declaration with r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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