2015 (4) TMI 418

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....2 and 07.12.2013 passed by the Commissioner (Appeals), Bhopal, wherein it has been held that the product "Fresubin" is classifiable as 'food supplement', as against the claim of appellant as 'instant food mix', and thus, the said product is not entitled for the benefit of exemption provided under Notification No. 3/2006 - CE dated 01.03.2006, as amended by Notification No. 3/2007 - CE dated 01.03.2007. 2. The brief facts of the case are that the appellant is a manufacturer of Spray Dried Gum Powder, Edible Preparation etc., falling under Chapter Heading 13 and 21 of the Central Excise Tariff Act, 1985 (for short, the CETA). During the disputed period, the appellant had availed exemption under Notification No. 3/2007-C.E. da....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....into powder and that the said powder can be consumed by mixing with water and that the product 'Fresubin' is therefore "instant food mix". The learned Advocate further submitted that in compliance of the requirement of food laws and for innovative marketing of the product "Fresubin", the appellant provide additional information in the packets/pouches regarding its possible use for hospitalized patients, which does not defeat or change the core and fundamental definition of "Instant Food Mix"; and thus, the same cannot be classified other than under Chapter heading 210690 of CETA, which attracts 'NIL' rate of duty. The learned Advocate also submitted a certificate dated 16.05.2007 issued by the Institute of Chemical Technolog....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ssified under the category of 'food supplement', as asserted by the Revenue, for which no exemption has been provided from payment of duty. 6. Chapter Heading 2106 under the CETA, relevant for the present dispute, is extracted herein below for ease of reference :- 2106 Food preparations not elsewhere specified or included 2106 10 00 Protein concentrates and textured protein substances Kg. 16% 2106 90 Other: Soft drink concentrates: Kg. 16% 2106 9011 Sharbat Kg. 16% 21069019 Other Kg. 37.5% 21069020 Pan Masala Kg. 16% 21069030 Betel nut product knows as "supari" Kg. 16% 21069040 Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....g instant food mixes" falling under Tariff item 2106 90 and prescribed the effective rate of duty as 'Nil'. According to the Department, the goods, in question, are not basic food product but are food supplements used for patient and other persons having deficiency of protein, vitamins, mineral, due to illness and hence the same cannot be considered as 'instant food mix' and are not covered by the S. No. 30A of the exemption notification No. 3/06-CE. 9. We find from the letter dated 23.05.2007 addressed to the jurisdictionai Range Superintendent of Central Excise, that the appellant had categorically stated that "Fresubin" is made from, or mixture of the basic food ingredients namely, corn starch, sucrose, milk protein and ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....asic food ingredients for preparation of "Fresubin" has not been specifically discussed. Further, the submissions of the appellant that affixation of additional information in the pouches regarding its possible use for hospitalized patients cannot change the basic characteristic of "Instant Food Mix" being a statutory requirement under the food laws, have been completely ignored in the impugned order. We also find that no conceivable substantiation has been brought on record to negate the stand of appellant, which is duly endorsed by the expert on the concerned field i.e. the Institute of Chemical Technology, University of Mumbai, vide certificate dated 16.05.2007. The reason assigned in the impugned order for non-consideration of the said ....