Food supplement classification under central excise tariff affirmed for ProBoFex as prepared food, not residuary goods.

ProBoFex capsule and liquid were classified as prepared or preserved foods put up in unit containers under Item 1B of the old Central Excise Tariff, because the product was treated as a food supplement rather than a drug or medicinal preparation. The Tribunal relied on a State Food and Drug Administration certificate stating that it was not a drug under the Drugs and Cosmetics Act, 1940, and followed earlier classification decisions for comparable products. A later contrary ruling was distinguished as not controlling. The residuary Item 68 was therefore inapplicable, and the assessee's classification was sustained.

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Issues: Whether ProBoFex capsule and liquid were classifiable under Item 1B of the old Central Excise Tariff as prepared or preserved foods put up in unit containers, or under the residuary Item 68.

Analysis: The product was treated as a food supplement and not as a drug or medicinal preparation. The Tribunal relied on the certificate from the State Food and Drug Administration stating that the product was not a drug under the Drugs and Cosmetics Act, 1940, and preferred earlier Tribunal decisions which had classified comparable products under Item 1B. It distinguished the later contrary decision as having been rendered without the benefit of those precedents and therefore not controlling. On that basis, the product was held to answer the description of prepared or preserved food put up in unit containers, and the residuary entry was held inapplicable.

Conclusion: ProBoFex was correctly classifiable under Item 1B of the old Central Excise Tariff and not under Item 68.

Final Conclusion: The appeal failed and the classification in favour of the assessee was sustained.

Ratio Decidendi: A food supplement, when shown to be marketed and treated as food and supported by prior binding or persuasive classification precedents, may be classified as prepared or preserved food under the specific tariff entry and cannot be relegated to the residuary entry merely because it is also described as a supplement.

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