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TMI Blog2025 (3) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary detail, facts of the case would go to reveal that Assessee-Respondent M/s. Pravin Masalewale was a manufacturer of Indian spices which were sold under the brand name "Suhana", "Ambari". As could be inferred from the appeal filed and submission of the parties, Appellant was manufacturing several varieties of spices which could be categorised in four forms namely (i) Single Spices, (ii) Blended Spices, (iii) Complete Spice Mixes and (iv) Ready Mix. First three varieties were cleared with 'nil' rate of duty as was covered under Chapter 9 while Ready Mix was cleared under Chapter 21 with Tariff Item No. 2106. Dispute in the present appeal is restricted to spice mix (a mixture of spices with other substances specific to various Indian curries). Assessee-Respondent claims that its product like Kadai Paneer mix, Veg Kolhapuri mix, Pav Bhaji spice mix etc. fall in that category. Period of dispute is from financial year 2015-16 to June, 2017, which is covered under extended period since for most of the normal assessment period, CGST Act, 2017 has come into force for which surprisingly no demand notice was sent as revealed from show-cause notice at par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to in paragraph (a) or (b) above] shall not affect their classification provided the resulting mixtures retain the essential character of the goods of those headings. Otherwise such mixtures are not classified in this Chapter; those constituting mixed condiments or mixed seasonings are classified in heading 2103." (Underlined to emphasise) B. "Mixed Condiments" and "Mixed Seasoning" (Chapter Heading 21039040) "Mix Condiments" and "Mixed Seasoning" are used inter- changeably thought not synonymous to each other. They are meant for products used in flavouring certain dishes Chapter Note of CETA has not explained it properly. Heading of 2103 runs as "sauces" and preparation thereof; "Mixed Condiments and Mixed Seasoning" it comes under the Heading "other" with single dash "-" meaning thereby that it is part of sauces or certain preparation which can be used as sauces. Its explanation is offered in the World Customs Organisation Harmonised Commodity Description and Coding System, the relevant portion of which reads as follows: "Mixed condiments and mixed seasonings containing spices differ from the spices and mixed spices of heading 09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting including compilation of case laws and also on the Tariff Items as well as description available in the Chapter Note of CETA and HSN. During course of hearing of the appeal learned Authorised Representative for the Appellant-Department Mr. Mahesh Yashwant Patil submitted that Tariff Item No. 09109100 that covers "mixtures" items were mainly of generic nature while "Mixed Condiments" 21039040 is more specific. While admitting that "retention of essential character" or its loss would take the item into a different form/ taste or flavour, he relied on the statement of production in-charge of Respondent-Assessee Mr. Prashant Ravindra Nerkar to justify that with such grinding, mixing and blending of various ingredients in certain proportion (of Chapter 04, 07, 08, ... 33 etc.) during the manufacturing process, the new product that emerged, developed its own character and taste which is different in taste and aroma. He further placed his reliance on the decision of Hon'ble Supreme Court passed in the case of A.P. Products Vs. State of Andhra Pradesh reported in (2007) 214 ELT 845 (SC) in which Hon'ble Apex Court had ruled that after grinding and mixing ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ece of evidence. 6.3 Learned Counsel for the Assessee-Respondent proceeded further in ascertaining that on similar products, Respondent also contested another show-cause notice way back in 2009 and succeeded before the then Commissioner who dropped duty demand of more than three crores, by taking a view that Appellant's (Respondent herein) products, which are similar to the present products but having different names in which the word "mix" was only added were covered under Chapter 0910 and the same order was accepted by the Department / also Appellant herein. Further on extended period, he argued at length that impugned order of the Principal Commissioner would go to show that on dated 05.04.2011, Assessee-Respondent also had submitted detail of products with process of manufacturing of the same (Order-in-Original para D.3) and there were continuous communication between the Respondent and the Appellant on such manufacturing processes. However, drawing our attention to relevant provision of the Food Safety and Standard Act, 2006 at 12.2.2 in which "Mixed Condiments" and "Mixed Seasoning" were defined, that would go to show that those are spice mixes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd categorised it as spice therefore, if one or more flavouring of seasoning substances of other Chapter (except Chapter 9) is mixed with spice mix in such proportion that the mixture would no longer have the essential character of spice within the meaning of Chapter 9, then the product is classifiable as "Mixed Condiments and Mixed Seasoning" under CTH 2103 and judgement of Hon'ble Supreme Court passed in the case of A.P. Products, cited supra has clearly stated that after grinding and mixing, ingredients loose their own identity/character and a new product is separately emerged. 8. We would like to deal with judgment of Hon'ble Supreme Court passed in the case of A.P. Products, cited supra as Appellant had not argued the same during hearing of this appeal but judgment of Hon'ble Supreme Court being the law of the land, should be honoured and followed by every subordinate judiciary in view of operation of Article 141 of the Constitution of India. As could be noticed, the said judgment has dealt with the provision of Sales Tax Act that was a State subject. Issue before the Hon'ble Supreme Court was that ingredients used in the "Masala Powder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racter of these substances is in their function, viz., to add flavour, aroma and pungency to various food preparations." and to find out the 'functions' from which essential characteristics can be traced out, end user's opinion is a must. Therefore, when no enduser was examined in this case it can't be taken as conclusive proof that end products of Appellants ready-mix had lost its individual characteristics. 9. "Such proportion" of use of other products is neither quantified in the Central Excise Tariff Act nor it is a natural happening that presence of more than 75% of other substance in a product would tilt its natural characteristics. Had it been so, all perfumes/fragrance/after-save lotion etc., which retained ethyl alcohol of more than 90% would have been called as 'alcohol' only and duty liability would have been determined accordingly. Further, medicinal compound of 5 mili grams would have lost its characteristics in a tablet which is normally of 40 to 50 ml. grams, designed for easy packaging and use. We are, therefore, of the considered view that only by establishing presence of more th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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