2022 (3) TMI 974 - AAAR - GST

Jackfruit, banana, tapioca, potato chips retain fruit/vegetable character despite processing, classified under heading 2008 not namkeens

AAAR Kerala ruled that jackfruit chips, banana chips, tapioca chips, potato chips, chembu chips, and pavakka chips cannot be classified as namkeens under ... Classification of goods - rate of tax - Namkeens or not - Jackfruit Chips, Banana Chips, Tapoica Chips, Potato Chips, Chembu Chips, Pavakka Chips and roasted / salted / roasted and salted preparations of Ground nuts, Cashew nut and other seeds supplied or proposed to be supplied by the appellant - Whether the impugned products ought to have been classified as Namkeens or sweetmeats under the HSN 2106.90.90 of the Customs tariff and taxed to GST @ 5% as per entry 101A of Schedule I to Notification No. 1/2017-CT(Rate) dated 28.06.2017? - HELD THAT:- From the plain reading of the contents of chapter 21, it reveals that it includes the food preparations which are not elsewhere specified in the customs tariff. Those food preparations not specified or included elsewhere in the tariff being preparations for use either directly or after processing for human consumption are to be classified under this heading 2106. Further the heading 2106 specifically excludes the preparations made from fruit, nuts or other edible parts of plants of heading 20.08, provided that the essential character of the preparations is given by such fruit, nuts or other edible parts of plants. Therefore, it is evident that the entry 2106.90 is a residuary entry in respect of edible preparations and hence the edible preparations shall be classified under this entry only if the same are not classifiable under any of the other specific entries for edible preparations. It is noticed that as per chapter note 1(a) to chapter 20, the chapter does not cover vegetables, fruits or nuts prepared or preserved by the processes specified in chapter 7, 8 or 11. It means that these items not being processed or preserved by the said processes shall be covered in chapter 20. The processes specified in chapter, 7, 8 or 11 are freezing, steaming, boiling, drying, provisionally preserving and milling. Chapter heading 2008 covers roasted, salted or roasted nuts and fruits such as ground nuts, cashew nuts, other seeds and nuts and these are specifically covered under said heading vide sl. No. 40 of schedule II to notification No. 1/2017-CT (rate) - there remains no doubt that the roasted/salted/roasted and salted ground nuts, cashew nuts and other seeds/nuts shall be appropriately classifiable under heading 2008 of customs tariff. Even otherwise also, heading 2106.90 being a residuary heading shall not stand against a specific heading 2008 as per Rules of interpretation of the tariff. Banana chips - tapioca chips - potato chips - jackfruit chips - sharkara varatty - HELD THAT:- These chips are made by slicing, frying, adding salt or masala or jaggery syrup before packing and supply. It is not the case of the appellant that the essential characteristics of the fruits or vegetables are getting changed by applying the processes. As far as the essential nature of the products remains unchanged, the edible parts of plants are appropriately classifiable under heading 2008. In this case, the raw banana or potato or jackfruit or tapioca even after going through the process of frying and salting remain as vegetables and fruits only. The process of frying in oil and roasting are cooking methods wherein high temperature is used for processing of the edible parts of the fruit or vegetables as in this case - The process of roasting and frying has not been excluded in Note 1 to Chapter 20 and as such Note 1 is applicable to Roasted and fried vegetables, fruits, nuts and edible parts of plants. Further the explanatory notes to heading 2008 specify that this heading covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter. When according to chapter notes and description of tariff items, the products are classifiable under specific headings of Chapter 20, they cannot be classified under Heading 2106 as food preparations not elsewhere specified or included or under Chapter 8 as claimed by the appellant. By applying the rules for interpretation of the tariff, specially rule 1, 2 and 3 of the same, it is evident that the impugned goods are appropriately classifiable under heading 2008 and not under heading 2106 - when there is a specific entry providing for the most specific description in the heading 2008 to the impugned products over the residuary heading description of heading 2106.90, the said impugned goods is held appropriately classifiable under heading 2008, by virtue of rule 3(a) of the rules for interpretation. In view of clear provisions in GST laws for interpretation of tariff, the contention of the appellant regarding common parlance understanding of a goods does not hold water, as is therefore rejected. All the other contentions of the appellant are rejected being not tenable and impugned goods viz. Jackfruit Chips, Banana Chips, Tapoica Chips, Potato Chips, Chembu Chips and Pavakka Chips (Bittergourd) (Whether salted/ masala or otherwise) are held classifiable under Tariff Heading 2008 19 40 of the Customs Tariff Act, 1975. Regarding classification of roasted/salted/roasted and salted Cashew nuts, Ground nuts, and other nuts, there are specific headings under Chapter 20 that covers the products. Accordingly, roasted /salted / roasted and salted Cashew nuts are held classifiable under Tariff Heading 2008 19 10, and other roasted/ salted / roasted and salted nuts and seeds are classifiable under 2008 19 20 of the Customs Tariff Act, 1975. Issues Involved:1. Classification of Jackfruit Chips, Banana Chips, and Banana Chips (masala) sold without a brand name.2. Classification of Sharkaraivaratty and Halwa sold without a brand name.3. Classification of roasted and salted/salted/roasted preparations of Ground nuts, Cashew nuts, and other seeds.4. Classification of salted and masala chips of Potato and Tapioca.Detailed Analysis:1. Classification of Jackfruit Chips, Banana Chips, and Banana Chips (masala):The appellant contended that these products should be classified as 'Namkeens' under HSN Code 2106.90.99 and taxed under Entry 101A of Schedule I of Central Tax (Rate) Notification 1 of 2017, attracting a GST rate of 5%. They argued that these items are commonly understood as 'Namkeens' based on Supplementary Note No. 6 of Chapter 21 of the Customs Tariff Act, which includes sweetmeats and namkeens irrespective of their ingredients.However, the authority held that these products are classifiable under Customs Tariff Heading 2008.19.40, which covers 'Fruits, nuts, and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included.' The authority emphasized that the essential character of the fruits remains unchanged after processing, and thus, they fall under Chapter 20 rather than Chapter 21. Consequently, these items are liable to GST at the rate of 12% [6% CGST + 6% SGST] as per Entry No. 40 of Schedule II of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.2. Classification of Sharkaraivaratty and Halwa:The appellant argued that Sharkaraivaratty and Halwa should be classified as 'Sweetmeats' under HSN Code 2106.90.99 and taxed under Entry 101 of Schedule I of Central Tax (Rate) Notification 1 of 2017, attracting a GST rate of 5%. They relied on the common parlance test and Supplementary Note No. 6 of Chapter 21, which includes sweetmeats.The authority held that Sharkaraivaratty is classifiable under Customs Tariff Heading 2008.19.40 and liable to GST at the rate of 12% [6% CGST + 6% SGST] as per Entry No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017. Halwa, on the other hand, is appropriately classifiable under Customs Tariff Heading 2106.90.99 and is liable to GST at the rate of 5% [2.5% CGST + 2.5% SGST] as per Entry No. 101 of Schedule I of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.3. Classification of roasted and salted/salted/roasted preparations of Ground nuts, Cashew nuts, and other seeds:The appellant contended that these products should be classified as 'Namkeens' under HSN Code 2106.90.99 and taxed under Entry 101A of Schedule I of Central Tax (Rate) Notification No. 1/2017, attracting a GST rate of 5%.The authority held that roasted/salted/roasted and salted Cashew nuts are classifiable under Customs Tariff Heading 2008.19.10, and roasted/salted/roasted and salted Ground nuts and other nuts are classifiable under Customs Tariff Heading 2008.19.20. These items are liable to GST at the rate of 12% [6% CGST + 6% SGST] as per Entry No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.4. Classification of salted and masala chips of Potato and Tapioca:The appellant argued that these products should be classified as 'Namkeens' under HSN Code 2106.90.99 and taxed under Entry 101A of Schedule I of Central Tax (Rate) Notification No. 1 of 2017, attracting a GST rate of 5%.The authority held that the salted and masala chips of Potato and Tapioca are classifiable under Customs Tariff Heading 2008.19.40. These items are liable to GST at the rate of 12% [6% CGST + 6% SGST] as per Entry No. 40 of Schedule II of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.Conclusion:The Appellate Authority upheld the Advance Ruling Authority's decision with minor modifications. The impugned goods, including Jackfruit Chips, Banana Chips, Sharkaraivaratty, and various roasted/salted nuts, are classifiable under different Tariff Items of Heading 2008 of Chapter 20 of the Customs Tariff Act, 1975, attracting a GST rate of 12%. Halwa is classified under HSN 2106.90.99, attracting a GST rate of 5%. The appeal filed by the appellant was rejected.