9911796707
TMI Blog2025 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sub heading 2106. Entry 21061000 covers two element, (1) Protein Concentrate and (2) Textured Protein and the word "Substances" covers both of these elements i.e. Protein Concentrate and Textured Protein. Since the import consignment are made of the protein concentrate along with other substances, it is opined that appropriate classification for the imported consignment will be CTH 21061000 not CTH 21069099 which is primarily for the goods not elsewhere 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. This Tribunal's decision in case of Glambia Performance Nutrition India Pvt Ltd vs. Commissioner of Customs, Mundra [2023 (9) TMI 419 - CESTAT AHMEDABAD] where it was held that 'the impugned goods are rightly classifiable under Heading 2106, sub heading 2106 1000 of the Customs Tariff.' Revenue has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been available before the customs authority at the time of the assessment, examination of the goods, the allegation of the suppression of the facts or mis-declaration with regard to description of the imported goods as required for invoking the provisions of Section 28(4) of the Customs Act, 1962 have not been established by the department.
Conclusion - i) The import consignment namely Mass Gainer- Food Supplement are nothing but protein concentrates which are use as food supplements for building muscles and since there is specific entry to this effect under Chapter 21061000 and following the General Rules of Interpretation, it is held that correct classification of the product will be under chapter 21061000. ii) The extended time proviso under Section 28 (4) of the Customs Act, 1962, cannot be invoked without evidence of collusion, willful misstatement, or suppression of facts.
Thus, on merit as well as on the period of limitation the impugned order-in-original is not legally sustainable, therefore, we set aside the same - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nts:- (i) On Serious Mass-whey protein concentrate blends-15%, Carbohydrate-76.64%, Fat-06% and other nutritional elements (ii) Mutant Mass contains Protein-20%, Carbohydrate-70%, Fat-3.5% and other nutritional elements, (iii) Scitec Jumbo- Protein-22.7%, Carbohydrate-66%, Fat-3.1% and other mineral elements. 2.1 From above, it was concluded that in the imported consignments wherein, the protein contents varied between 15% to 20% whereas, Carbohydrate substance varied between 66% to 77%. The Adjudicating Authority reached to the conclusion that the imported consignment namely "Mass Weight Gainers" are nothing but high calorie supplements that contains various % levels of the proteins, fat, carbohydrates, minerals, vitamins, amino acids and various other supplements. The Adjudication Authority has concluded that since, the imported consignment were having low level of the protein in comparison to other nutritional supplements like carbohydrates and fats and therefore, the 'Mass Gainer' is typically consumed to increase the calorie intake in the body and further to instigate muscle gain. 2.2 The Learned Advocate has further submitted that the Adjudicating Authority failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd any relative Section Note or Chapter Note. It is also submitted that in terms of Rule 2 (b) of the said Rules, a reference in a heading to a material or substance shall be taken to include a reference to mixtures or combination of that material or combination of that material or substance with other material or substance. 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 said Rule also provides that classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3. Further, as per Rule 3 (a), the heading which provides the most specific description shall be preferred to headings providing a more general description and as per Rule 3 (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 Rule 3 (a), shall be classified as if they consisted of material or component which gives them their essential character, insofar as this criterion is applicable. In the instant case by application o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Tribunal. In the case of present appellants also, the goods under import are Mass Gainer Nutritional Supplements only and therefore the classification of these goods also merit under CTH 21061000 following the ratio of aforesaid judgment 2.7 The case law of Raptakos Brett & Co. Ltd. Versus Commissioner of C. Ex., RAIGAD (2014 (307) E.L.T. 565 (Tri. Mumbai)} as quoted by the Ld. Adjudicating Authority in Para 13.7 of the said Order-in-Original is not squarely applicable to the present case, since in that case the product was consumed by people recuperating from illness, which is not the case here. In the present case, the product under import i.e. Mass Gainer Nutrition Supplement is consumed by people desirous of gaining muscle and mass and not by people recuperating from illness. 2.8 The Ld. Adjudicating Authority in Para 13.8 of the subject Order-in-Original has examined Section 17 of the Customs Act, 1962 and in Para 13.8.1 concluded that the differential duty is payable by the importer (the Appellant in this case). In this regard, it is humbly submitted that the description of goods was well written on the Bills of Entry filed with the Department which is not at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermine and assess duty accordingly". 2.9 The Learned Advocate has also submitted that entire demand is barred by the period of limitation as impugned show cause notice dated 25.01.2023 demands the short payment of customs duty on the Bills of entry which cover the period from 28.03.2018 to 03.03.2021. The Learned Advocate has submitted that there was no misdeclaration on the Bills of entry or any other import documents by the appellant. All the facts were before the department. It has further been mentioned that once the description of the goods is not at all in dispute and it is only a question of the interpretation of the classification, the charge of deliberate misdeclaration against the appellant is legally not sustainable. It has further been said that the neither the impugned show cause notice nor order-in-original brings out any evidences to allege that the appellant have intentionally within intent to evade customs duty has mis-declared the description or any other documents in the subject import consignments. It has further been mentioned the extended period of limitation for demand of the customs duty can be invoked only when deliberate attempt to mis-declare or sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms duty by invoking extended time proviso under Section 28 (4) of the Customs Act, 1962 is legally sustainable or not. 4.2 Before proceeding to answer the above mentioned questions, we would like to mention the facts that up to January, 2018 the basic customs duty on the goods falling under CTH 21061000 and the goods classifiable under CTH 21069099 were charged to same rate of customs duty i.e. at the rate of 30% in terms of the Notification No.12/2012-CUS dated 17.03.2012. However, vide the Notification No.06/2018-CUS dated 02.02.2018 effective rate of the BCD in resect of the sub heading 210690 was increased to 50%. However, the customs duty rate under CTH 21061000 remained the same at the rate of 30% till 22.05.2018. Further, vide Notification No.45/2018- CUS dated 23.05.2018 effective rate of the basic customs duty in respect of Customs Tariff Heading 21061000 was increased to 40%. However, the basic customs duty under sub heading 210690 still remained it 50% ad valorem. The entire dispute has arisen only after the difference in the effective rate of the customs duty was created by the above mentioned customs notification. It is worthy to note as submitted during hearing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Custard powder, Food flavouring material etc. The supplementary Chapter note to the Chapter 21 under Serial No.6 mentions as follows:- "6. Tariff item 2106 90 99 includes sweet meats commonly known as "Misthans" or "Mithai" or called by any other also include products commonly known as "Namkeens", "mixtures", "Bhujia", "Chabena" or called by any other S products remain classified in these sub-headings irrespective of the nature of their ingredients." 4.6 The Customs Tariff itself explains that Tariff item 21069099 includes product like sweet meats, misthans etc. and such products to remain classified under this sub heading irrespective of nature of their ingredients. The products which have been imported by the appellant is not of the category of mithai, namkins, bhujia etc. which are primarily covered under 21069099. The products which have been imported under the impugned bills of entry by the appellant are primarily food supplement which contains protein concentrate along with other substances such as Carbohydrate, Fats etc. From the submission which have been made by the appellant before us and the literature which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, insofar 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." 4.8 It can be seen that Rule 2 (b) specifically mentions that any reference to goods of a given material of substance shall be taken to include a reference to the goods consisting wholly or partly of such material of such substance and the classification of the goods consisting more than one material or substance shall be according to principles of Rule 3. 4.9 It can be seen that general Rule of interpretation 3 (a) provides that heading which provides most specific description shall be preferred to the heading providing a more general description. From the literature and photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue. S.No. Product Name Department's Classification Appellant's Classification 1. BSN Syntha 6 Chocolate 21061000 18069040 2. BSN Truemass 1200 Chocolate 21061000 18069040 3. Isopure Low Carb - Chocolate 21061000 18069040 4. Isopure Zero Carb - Chocolate Mint 21061000 18069040 5. Optimum Nutrition 100% Casein-Chocolate Supreme 21061000 18069040 6. Optimum Nutrition 100% Whey Gold Standard- Chocolate 21061000 18069040 7. Optimum Nutrition 100% Whey Gold Standard- Chocolate Hazelnut 21061000 18069040 8. Optimum Nutrition 100% Whey Gold Standard- Chocolate Malt 21061000 18069040 9. Optimum Nutrition 100% Whey Gold Standard- Chocolate Mint 21061000 18069040 10. Optimum Nutrition 100% Whey Gold Standard- Chocolate Peanut Butter 21061000 18069040 11. Optimum Nutrition 100% Whey Gold Standard- Cookies and Cream 21061000 18069040 12. Optimum Nutrition 100% Whey Gold Standard- Double Rich Chocolate 21061000 18069040 13. Optimum Nutrition 100% Whey Gold Standard Isolate - Chocolate 21061000 18069040 14. Optimum Nutrition 100% Whey Gold Standard Isolate - Chocolate Bliss 21061000 18069040 15. Optimum Nutrition 100% Whey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he instant case are reproduced below: 1806 CHOCOLATE AND OTHER FOOD PREPARATIONS CONTAINING COCOA 18061000 - Cocoa powder, containing added sugar or other sweetening matter kg. 30% - 18062000 - Other preparations in blocks, slabs or bars weighing more than 2 kg. or in liquid, paste, powder, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kg. kg. 30% - - Other, in blocks, slabs or bars : 18063100 -- Filled kg. 30% - 18063200 -- Not filled kg. 30% - 180690 - Other : 18069010 --- Chocolate and chocolate products kg. 30% - 18069020 --- Sugar confectionary containing cocoa kg. 30% - 18069030 --- Spreads containing cocoa kg. 30% - 18069040 --- Preparations containing cocoa for making beverages kg. 30% - 18069090 --- Other kg. 30% - 2106 FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 21061000 - Protein concentrates and textured protein substances kg. 40% - 210690 - Other : --- Soft drink concentrates : 21069011 ---- Sharbat kg. 150% - 21069019 ---- Other kg. 150% - 21069020 --- Pan masala kg. 150% - 21069030 --- Betel nut product known as "Supari" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds to be read with Supplementary Note 5(a) in terms of rule 1 of the Rules of Interpretation of Customs Tariff as discussed in para 49 onwards below.. 47. Whey proteins are available in different flavours like Double Rich Chocolate, Chocolate Bliss, Cream Vanilla, Delicious Strawberry, Vanilla Ice-Cream, Mocha Cappuccino etc. The appellant has described the goods in the appeal memorandum as follows: "The appellant is primarily engaged in the business of importing and selling nutritional supplements in India. In this regard, the appellant imported certain nutritional supplements containing cocoa, glutamine powder, creatine powder and certain unflavoured nutritional supplements from M/s Glanbia Nutritionals (Ireland) Ltd. The basic raw material of nutritional supplements imported by the appellant is 'WHEY'." Ld Counsel has described the product as "chocolate protein powders/chocolate-flavoured protein powders" as can be seen from his submissions in para 6 above. These powders are used by the athletes and sport persons as food supplements to supplement their protein intake. The argument of the appellants is that mere presence of cocoa in the impugned products rules out classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) Prepared enzymes of heading 3507. 2.- Extracts of the substitutes referred to in Note 1 (b) above are to be classified in heading 2101. 2.- Extracts of the substitutes referred to in Note 1 (b) above are to be classified in heading 2101. 3.- For the purposes of heading 21.04, the expression "homogenised composite food preparations" means preparations consisting of a finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables or fruit, put up for retail sale as infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250g. For the application of this definition, no account is to be taken of small quantities of any ingredients which may be added to the mixture for seasoning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients. 3.- For the purposes of heading 21.04, the expression "homogenised composite food preparations" means preparations consisting of a finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables or fruit, put up for retail sale as infants or young children or for dietetic purposes, in cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. COMPARISON of CHAPTER 18 of HSN with THE CHAPTER 18 OF THE CUSTOMS TARIFF CHAPTER NOTES OF CHAPTER 18 OF CUSTOMS TARIFF ACT CHAPTER NOTES OF CHAPTER 18 OF HSN NOTES:- NOTES:- 1. This Chapter does not cover the preparations of headings 0403, 1901, 1904, 1905, 2105, 2202, 2208, 3003 and 3004. 1. This Chapter does not cover the preparations of heading 04.03, 19.01, 19.04, 19.05, 21.05, 22.02, 22.08, 30.03 or 30.04. 2. Heading 1806 includes sugar confectionary containing cocoa and, subject to Note 1 to this Chapter, other food preparations containing cocoa. 2. Heading 18.06 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembled. (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 description. 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 differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Rule 3. Rule 3 must be understood only in the context of sub-rule (b) of Rule 2 which says inter alia that the classification of goods consisting of more than one material or substance shall be according to the principles contained in Rule 3. Therefore when goods are prima facie, classifiable under two or more headings, classification shall be effected according to sub-rules (a), (b) and (c) of Rule 3 and in that order. The sub-rules are quoted :- "(a) The heading which provides the most specific description shall be preferred to heading providing a more general description. 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, 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, 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 charact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e classified with reference to (a) or (b), they should be classified under the Heading which occurs last in the numerical order. The order of priority therefore is; (a) specific description, (b) essential character, and (c) the Heading which occurs last in numerical order. However, GRI-3 can only take effect provided the terms of the Heading or Section or Chapter Notes do not otherwise require. GRI-4 states that when the goods cannot be classified in accordance with the aforementioned rules, they shall be classified under the heading appropriate for the goods "to which they are most akin". GRI-5 applies exclusively to cases and packing material, and therefore, is not apropos. GRI-6 states that the classification of goods in the sub-headings of a Heading shall be determined according to the terms of those sub-headings and any related Notes, and mutatis mutandis to the above GRIs, on the understanding that only sub-headings at the same level are comparable." (iii) In the case of Westinghouse Saxby Farmers Ltd. 2021 (376) ELT 14 (SC) the Hon'ble Apex Court has observed as follows: "31. But in invoking General Rule 3(a), the Authorities have omitted to take note of 2 things. They a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture of Close-Up Whitening and the addition of that ingredient does not change the purpose, nature as well as definition of the product in a common market parlance. He observed that in the market the product was known as toothpaste. He also observed that it is treated as toothpaste as per the product manual issued by the Dental Invocation Centre, Mumbai. Discussion is summed up in para 32 of the order passed by the Commissioner, which reads as under : "32. As narrated in the SCN that the tooth paste, being dentifrice has been correctly classified under the HSN and the Central Excise Tariff has been based on HSN. Accordingly it is essential to follow the correct classification of the product in question as described and classified under the relevant chapter of HSN. In this connection it may be mentioned that the Hon'ble Supreme Court in the case of CCE, Shillong v. Wood Craft Product Ltd. reported in 1995 (77) E.L.T. 23 (S.C.) in para 18 has held that the structure of Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and therefore, any dispute relating to tariff classification must, as far as possible be resolved with reference to the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and "other preparations for teeth" whether for cleaning or polishing the assessable surface of teeth or for other purposes such an Anticaries prophylactic treatment. The Note also enumerates that 'toothpaste' and 'other preparations for teeth' remains classified under Heading 3306 whether or not they contain abrasives and whether or not they are used by dentist. The correct scope of the heading as per the submission of the appellants is that when one refers to HSN Item 3306 and the bifurcations as also under CETA, 1985 there is a variance seen. In other words, this bifurcation under Heading 3306 for HSN and is not pari materia and under CETA, 1985 and therefore, the sub-heading structure of HSN would not apply to CETA. The CETA proves preparation for oral or dental hygiene including Dentifrices and Denture Fixative paste and powders under Heading 3306 and at the four digit level it is para material HSN. The scope of sub-heading 3306.10 of CETA, 1985 restricts it to only 'tooth powder and paste' and any entity which is not a 'toothpowder or toothpaste' would be covered under Heading 3306.90. This submission has to be upheld." We find ourselves in agreement with the aforesaid ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the Customs Tariff and HSN reliance cannot be placed on HSN Section Notes, Chapter Notes and Explanatory Notes for the purpose of classification. In such cases reliance is to be placed on the Chapter Notes and Section Notes appearing in the Customs Tariff. The appellants have also relied on the decision of Tribunal in the case of Anutham Exim P. Ltd. 2021 (378) ELT 611 (T-Kol.). In the said decision also in para 13 following has been observed: "13. The Schedule to the Customs Tariff Act, 1975 (commonly referred to as Customs Tariff) is based on, although it is not identical to, the Harmonised System of Nomenclature (HSN) - an internationally recognised scientific method of classifying all goods. Sometimes there are differences between the HSN and the Customs Tariff in which case, the latter is relevant for determining the duty liability under the Customs Act. In view of the explanation to this effect in the IGST Notification specifying the rates of IGST chargeable on different goods, IGST is also to be charged as per the classification under the Customs Tariff. Customs Tariff, groups goods into Sections, each of which is further divided into Chapters with a two digit Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are additional 'Supplementary Notes' which reads as follows: "SUPPLEMENTRY NOTES : 1. In this Chapter, "Pan masala" means any preparation containing betel nuts and any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredient, such as cardamom, copra or menthol. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tein Substances' would fall under heading 2106. The heading 2106 of the Custom Tariff Act reads as follows: 2106 FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 21061000 - Protein concentrates and textured protein substances kg. 40% - 210690 - Other : --- Soft drink concentrates : 21069011 ---- Sharbat kg. 150% - 21069019 ---- Other kg. 150% - 21069020 --- Pan masala kg. 150% - 21069030 --- Betel nut product known as "Supari" kg. 150% - 21069040 --- Sugar-syrups containing added flavouring 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% - It is seen that OIA in the instant case relies on Supplementary Note 5(a) and interpretative Rule 1 for the purpose of classifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing can we delete but it should be interpreted and construed as per the words the legislature has chosen to employ in the Act or Rules. There is no room for assumption or presumptions. The object of the Parliament has to be gathered from the language used in the statute. The contention that toilet soap is commercially different from household and laundry soaps, as could be seen from the opening words of Entry 15, needs careful analysis. It is well, at the outset, to guard against confusion between the meaning and the legal effect of an expression used in a statute. Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The court would interpret them as they stand. The object and purpose has to be gathered from such words themselves. Words should not be regarded as being surplus nor be rendered otiose. Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings. The safer and more correct course to deal with a question of construction of statute is to take the words them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no scope for consideration of principles of equity. It was so said by Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921 (1) KB 64 at page 71] : "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." The above observation has been quoted with approval by a Bench of three Judges of this Court in Commissioner of Income Tax, Madras v. Ajax Products Ltd. [55 STC 741]. In another decision rendered by a Bench of three Judges of this Court in The State of Tamil Nadu v. M.K. Kandaswami and others [36 STC 191] it has been observed thus: "In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book should be eschewed. If more than one construction is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile." In view of above, it is apparent that Supplementary Note 5(a) would be rendered otiose if we read it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered in two flavors-chocolate and vanilla. Ingredients common to both products are approximately 37-38 percent whey protein isolate, 34-36 percent whey protein concentrate, 12-13 percent fructose, 6 percent l-glutamine, 2-3 percent chicory root extract (inulin), one percent erythritol, and less than one percent, cach, colloid gum powder, sodium chloride, aminogen (plant enzyme), cream flavor, red orange extract, ascorbic acid and stevia- rebiana. Other ingredients, depending on the flavor, include about 2 percent cocoa (lecithinated), 2 percent chocolate flavor and I percent natural vanilla flavor. Both products will be put up for retail sale in containers holding 908 grams, net weight, and used as a food supplement. You have suggested that the subject products are classifiable in subheading 0404.10.0500. Harmonized Tariff Schedule of the United States (HTSUS), which provides for whey protein concentrates. We disagree. Based on the ingredients breakdowns, they will be classified elsewhere. The applicable subheading for the Chocolate Whey Protein Powder will be 1806.90.9090, HTSUS, which provides for other food preparations containing cocoa... other... other...other. The rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Flavor, Lecithin and Acesulfame Potassium. All products are in powder form, put up for retail sale in plastic containers. The 100% Whey Classic-Chocolate comes in sizes weighing either 2 pounds or 5 pounds. The 100% Whey Gold Standard - Chocolate comes in sizes weighing 1 pound, 2 pounds, 5 pounds or 10 pounds. The product is mixed with water, milk or other beverages to make a dietary supplement. The applicable subheading for the 100% Whey Classic - Chocolate and 100% Whey Gold Standard-Chocolate will be 1806.90.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for chocolate and other food preparations containing cocoa… other… other… other. The rate of duty will be 6 percent ad valorem." (III) Similarly in the tariff Ruling No. N028196 dated 02.06.2008 by Robert B. Swierupski Director National Commodity Specialist Division, has clarified as follows: "Ingredients breakdowns, descriptive information, and a manufacturing flow chart for two products were submitted with your letter. The products, described as pink-colored, free-flowing powders, will be used as nutritional supplements. 100 percent Whey Gold Standard - Strawberry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 2019. The relevant extract of the Amendment to Chapter heading 2106 is reproduced below for ease of reference- .. CHAPTER 21 Heading 21.06 Page IV-2106-3. Item (16) …. Insert a new exclusion note (c): (c) Preparations containing cocoa, put up as food supplements for human consumption (heading 18.06). While such amendments would have relevance if the Customs Tariff is aligned with the HSN, such changes have no relevance when Government of India has chosen to deviate from the HSN by specially prescribing that the impugned products would be classified under 'Heading 2106". The prescription in Chapter Supplementary Note 5(a) would take precedence over the HSN Heading Notes of the CTH 2106. In case of heading 2106, the government has chosen to deviate from the prescription of the HSN by introducing Supplementary Notes to Chapter 21 which specifically classify the impugned products under 'Heading 2106'. In these circumstances the HSN notes to the Chapter heading, and amendments made therein, which are in conflict with the supplementary notes to the Chapter, are to be ignored. 57. In view of above discussion we hold that the impugned goods are rightly clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore differentiate that following of this Tribunal in this case is not relevant to the matter of hand and other two decisions mentioned in the preceding para are not relevant to the imported consignment in this case. Therefore, the argument taken by the Learned AR not acceptable. 4.12 In view of entire above discussion, we are of the opinion that import consignment namely Mass Gainer- Food Supplement are nothing but protein concentrates which are use as food supplements for building muscles and since there is specific entry to this effect under Chapter 21061000 and we follow the General Rules of Interpretation and hold that correct classification of the product will be under chapter 21061000. 4.13 Now coming to the second argument which has been taken by the appellant that entire demand is hit by period of limitation as show cause notice has been issued on 25.01.2023 by invoking the provisions of Section 28 (4) of the Customs Act, 1962 for the consignments which have been imported by the appellant from March 2018 to 03.03.2021. We find that Section 28(4) mentions as follows:- "4) Where any duty has not been 10[levied or not paid or has been short-levied or short-paid] or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced herebelow:- "8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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