Tariff classification of milk-based food supplement treated as an edible preparation, not a dairy produce, under Chapter 21.

Tariff classification of a branded food supplement turned on the wording of Chapter 4 and Chapter 21, the relevant chapter notes, product composition, and common trade understanding. Although the product contained some milk-derived ingredients, it was manufactured as a separate food supplement process and did not fall within the ordinary meaning of dairy produce such as milk, butter milk, curd, cream, yogurt, or whey. It was treated as an edible preparation for human consumption and a product put up in unit containers. The product was therefore classifiable under sub-heading 2107.91, and not under sub-heading 0404.00.

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Issues: Whether the product marketed as Spert was classifiable as a dairy produce under sub-heading 0404.00, or as an edible preparation under sub-heading 2107.91.

Analysis: The product was examined in the light of the tariff headings, the chapter note to Chapter 4, the composition of the product, trade understanding, and the nature of the ingredients used. Although some ingredients were derived from milk, the product itself was manufactured as a food supplement in a separate process and did not answer to the common understanding of a dairy produce. The expressions in Chapter 4 were held to cover milk and milk products such as butter milk, curd, cream, yogurt, whey and products consisting of natural milk constituents, but not a branded protein food supplement of this nature. Chapter 21 was considered wide enough to include edible preparations, including preparations used for human consumption and products put up in unit containers.

Conclusion: The product was not a dairy produce and was correctly classifiable under sub-heading 2107.91. The classification claimed by the assessee under sub-heading 0404.00 was rejected.

Final Conclusion: The appeals failed because the product was held to be an edible preparation falling under Chapter 21 rather than a dairy product under Chapter 4.

Ratio Decidendi: For tariff classification, the product must be classified according to the heading, chapter notes, and common trade understanding; a food supplement derived partly from milk ingredients does not become a dairy produce merely because it contains milk-derived constituents.

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