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TMI Blog2004 (12) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be : preparation for use either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids) for human consumption. It has to be: Preparations consisting wholly or partly of foodstuffs used in the making of beverages or foods preparations for human consumption or those of preparations consisting of mixtures of chemicals organic acids, calcium salts, etc. with foodstuffs (flour, sugar, milk powder, etc.). As discussed, even going by para 16 of HSN Explanatory Notes at pg. 276, which has also been extracted, we do not find the item satisfying the criteria laid down in Chapter 21. There is no mixing of vitamin or iron as the item continues to be the same as vegetable oil under Chapter 15. The ingredients are not added in the impugned items and resultant product does not come under CH 2108.99 as 'Edible preparations not elsewhere specified or included'. Hence, the classification adopted by the Commissioner in the present case to hold the 'Primosa' and 'Simrose' oil, which are encapsulated to fall under CSH 2108.99 is required to be set aside by allowing the appeals. The appeals are allowed with consequential relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are two sub-headings - (1) 2108.91 which is a product not bearing a brand name; and (2) 2108.99 for other. It is pointed out by ld. Counsel that in terms of HSN Explanatory Notes, any specified product under Chapter Heading 21 should be- (a) Preparations for use, either directly or after processing (such as cooking; dissolving or boiling in water, milk or other liquids) for human consumption. (b) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or foods preparations for human consumption. Preparations consisting of mixtures of chemicals (organic acids, calcium salts, etc.) with foodstuffs (flour, sugar, milk powder, etc.) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance, keeping qualities, etc.). 4. Ld. Counsel also drew our attention to sub-para (16) at Page No. 276 in HSN Explanatory Notes and points out that the preparations should contain added vitamins and sometimes minute quantities of iron compounds, however preparations which are intended for the prevention or treatment of diseases are excluded. The relevant sub-para (16) is as under - (16) Preparations, often referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the product Primosa and Simrose being capsules packed and presented in blister packing form. Now it is appropriate and important to firstly look into the use of these capsules. Which is as claimed by the assessees as contained in the product literature available on the packing is for human consumption as a Dietary food supplement. Therefore this is the guiding factor and a factor to be reckoned with which leads to the classification of the product under Chapter heading 2108.99. Their argument that the capsules contain EPO and since EPO is classifiable under Chapter heading 1503 as essential oils, does not sustain other criteria but to go straight to the tariff and see if the commodity can be classified. As in the instant case, the end product is capsule marketed as dietary food supplement, we can straightaway go to the tariff and classify the product as a dietary supplement under chapter sub-heading 2108.99. Therefore in view of the above discussions I hold that the product Promosa and Simrose capsules are correctly classifiable under chapter Heading 2108.99. 7. Ld. JCDR submits that since the item is marketed as 'Dietary Food Supplements', therefore it is specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in that case the umbilical cord of identity between powder and tablet has not been scissored. In this regard, the Bench relied on a large number of judgments. We find that the ratio of this judgment clearly applies to the facts of the case as mere encapsulating the vegetable oils into capsule form does not make it a different product. 10. The learned JCDR relied on the Apex Court judgment rendered in the case of Kores India Ltd. v. CCE, Chennai - 2004 (174) E.L.T. 7 (S.C.). In this case, the cutting of Jumbo rolls of typewriter/telex rolls, typewriter/telex ribbons were wound/spooled into metal spools and 10 such spools were blister packed and sealed with aluminium foil and the resultant product was a distinct, identifiable article having distinct name, function and use and the Apex Court found it to be a different product than the jumbo rolls as jumbo rolls cannot be used in typewriter and similarly a person who requires 30 pieces of spool ribbon would not be satisfied if he is offered Jumbo rolls of equal length. In the present case, by encapsulation, the item has remained the same and it does not change its identity, use or character. Furthermore, on an identical situation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case also, the vegetable oils did not change its identity by putting it in tablet form and mere fact of appellant having marketed it as a food supplement by itself will not be a ground to classify it as a food supplement when it is not food supplement in terms of the HSN Explanatory Note. Furthermore, Chapter 21 is attracted only when the requirements of HSN Note, as extracted supra, is satisfied. The impugned items do not fall in any of the various sub-headings under Chapter 21, as extracted supra. For the purpose of bringing the item under Chapter Heading 21, it has to be : preparation for use either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids) for human consumption. It has to be: Preparations consisting wholly or partly of foodstuffs used in the making of beverages or foods preparations for human consumption or those of preparations consisting of mixtures of chemicals organic acids, calcium salts, etc. with foodstuffs (flour, sugar, milk powder, etc.). As discussed supra, even going by para 16 of HSN Explanatory Notes at pg. 276, which has also been extracted, we do not find the item satisfying the criteria laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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