TaxTMI 
TaxTMI 
2015 (2) TMI 740
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....hority vide order in original no. 247/2012-13 dated 30/07/2012 held that subject goods is classifiable under CTH 21069099 and attracting BCD at the rate of 30%; the said goods is not eligible for benefit of notification no. 010/2008-Cus Sr. No. 9, as the goods of 21069099 are not covered; goods are also directed to be assessed on RSP based CVD as applicable vide CE notification No. 49/2008; the duty shall be paid with interest accordingly. Being aggrieved, the respondent filed appeal before the Commissioner of Custom (Appeals), Mumbai Zone II, which was allowed vide order-in-Appeal No. 356(CFS MULUND) 2013/JNCH/IMP-280 dated 5/4/2013, wherein the Ld. Commissioner (Appeals) has held that the product is specifically marked as 'food supplement for infant'. It is a substitute for the mother's milk. It was held that product in question can not be classified or termed as supplement. Aggrieved with the said order dated 5/4/2013, the Revenue is before us. 2. Shri M.S. Reddy, Ld Dy. Commissioner, (A.R.) appearing for the Revenue submits that the product SIMILAC-2 is not baby food but food supplements containing proteins, minerals, vitamins, carbohydrates fats. The product is ....
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....p for retail sale. The Chapter heading 21.06 covers only those food preparation which is not specified or included elsewhere. Since the product SIMILAC 2 being specifically included under chapter heading 19.01 under the tariff entry namely "Preparation for infant use", it can not be classified in residuary tariff entry that is under 21.06. As per Harmonised System Committee of World Custom Organization 'follow up formula' in the form of powder consisting amongst other ingredients, skimmed milk intended to be consumed by the infants are to be classified under 19.01. Regarding instruction on the products such as, the product should be used only on the advise of the health worker, consultation with doctor for advise etc., reference was made to the 'Infant Milk Substitute, Feeding Bottle and Infant foods (Regulation of Production, Supply and distribution)Act, 1992 according to which the said instructions are mandatory requirement on the infant food product; therefore, such mention is a statutory requirement. Even as per definition of the 'infant food' provided in the Act, 1992 supra, the product in question is nothing but infant food. He also countered the revenue&#....
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....nbsp; Tariff Item Description of goods Unit Rate of duty 2106 Food preparations not elsewhere specified or included 2106 10 00 - Protein concentrates and textured protein kg. 12% substances 2106 90 - Other: --- Soft drink concentrates: 2106 90 11 ---- Sharbat kg. 12% 2106 90 19 ---- Other kg. 12% 2106 90 20 --- Pan masala kg. 37.5% 2106 90 30 --- Betel nut product known as "Supari" kg. 12% 2106 90 40 --- Sugar- syrups containing added flavouring or kg. 12% colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup 2106 90 50 --- Compound preparations for making kg. 12% non-alcoholic beverages 2106 90 60 --- Food flavouring material kg. ....
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....tion and Restriction on Sales) Regulations, 2011 iv. Bureau of Indian Standards Act, 1986 v. Indian Specification IS 15757:2007 vi. Foreign Trade Policy and ITC-HS Classification of Import and Export Items. From the facts and literature of the product, it is found that the compliance of the above acts and rules were made, for this reason also, there is no hesitation in holding that the product in question can be termed as 'Infant Food.' 5.1 The submission of the revenue that since there is mention on the product that the same should be used on the advise of the health worker, it is not a food but it is medicine, is not at all acceptable for the reason that in terms of the Section 6(b) of the Infant Food Act, the Respondent made a statement on the product - "Infant milk substitute or infant food should be used only on the advice of a health worker as to the need for its use and the proper method of its use." This statement is statutory requirement to ensure that premature babies and infants are not affected by any adverse reaction to infant food and not because it is a medicinal product as assumed by the revenue. The Food Safety and Standards Act, 2006 in S....