TaxTMI 
TaxTMI 
2018 (10) TMI 1623
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....wing ingredients: i. Sugar ii. Vegetable Fats iii. Skimmed Milk Powder iv. Whey Powder v. Emulsifiers vi. Flavours 1.3. The above product is packed into small sachets of around 4 grams each, 58 such sachets are then packed into a large pack used for selling to the distributors and retailers and the end customer would buy the small sachet and consume it after opening the same. 1.4. As per the report of government approved laboratory, the product manufactured by the applicant, having following chemical parameters., i.e.:- a. Protein : 5.12% b. Fat : 34.27% c. Sugar : 45.10% 1.5. The Applicant have further submitted that as per their view the aforementioned product should be treated as 'sweet meat', classifiable under tariff Heading No.21069099. In support of their view the Applicant have adduced following points: A. The Product is in the nature of sweet meat - 1. We submit that sweet meats include any product which includes sugar as ingredient. That there are no set ingredients for the composition of sweet meats and any sweet product can be called a sweet meat if they are known, sold and consumed as sweets. 2. That the only differen....
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....s', 'Bhujia', 'Chabena' or called by any other name. Such products remain classified in these sub-headings irrespective of the nature of their ingredients.' 8. That, it is to be noted that any products which are commonly known as Mithai or Mishthan remain classified in Chapter 21, irrespective of the nature of their ingredients. That the intention of the chapter note is to remove any doubts as to the classification of such products and to include all such products regardless of their nature of ingredients in tariff heading 2106 90 99. 9. In this context we invite the kind attention of this Hon'ble Authority to the case of Globe Confectionery Vs. CCE, Allahabad [2005 (190) ELT 239 (Tri-Del)] = 2005 (7) TMI 194 - CESTAT, NEW DELHI, wherein the Hon'ble Tribunal held in Para 4 as follows: 'The dispute is not whether the item is Rasgulla or Peda. Nor is classification dependent upon composition. Composition is irrelevant, since Note 10 reproduced above states that "products remain classified under 2108" irrespective of the nature of their ingredients. The scheme of the classification is to place all "misthans" or "mithai" under 2108. The terms of the note are "include swe....
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....h boiled sweets are then wrapped and marketed as toffees. We submit that our product is not a hardened boiled sweet. It is a soft preparation and hence cannot be considered as 'boiled sweet'. 20. That the Oxford Dictionary defines boiled sweets as 'A hard sweet made of boiled sugar'. We submit that our product does not contain boiled sugar and it is also not a hard sweet. It is a soft liquid preparation which cannot be called as boiled sweet. 21. We further invite the attention of this Hon'ble Authority to the CBEC's FAQs on classification released on 29.09.2017, wherein the Board clarified that HS code 1704 covers most of the sugar preparations which are marketed in a solid or semi-solid form genera//y suitable for immediate consumption. We stress on the fact that as per the Board's clarification, the HSN code 1704 contains products which are marketed in solid or semi-solid form. This is other products such as peanut chikki, rajgira chikki, shakkarpara are classified in HS Code 1704 vide the aforementioned clarification. Since our product is in fact a liquid preparation and is not in a solid or semi solid form, it cannot be grouped in the same category as other solid forms o....
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....e classified under Chapter Head 1704 as Confectionery item. 4. RECORD OF PERSONAL HEARING: 4.1. Shree Ajay Makhija, Director CA Pradeep Asawa And CA Palkesh Asawa, appeared on behalf of the applicant for Personal Hearing and he reiterated the submissions already made in the application. 5. DISCUSSIONS AND FINDINGS: 5.1. We have carefully considered the submissions made by the applicant in the application, the pleadings on behalf of the Applicant made during the course of personal hearing. At the outset, we find that the issue raised in the Application is squarely covered under Section 97(2)(a) of the CGST Act 2017 being a matter related to classification of goods, and the applicant have complied with the all the requirements for filing this application as laid down under the law. We therefore admit the application for consideration on merits. 5.2. We find that the present application seeks Ruling on appropriate classification of goods manufactured by the Applicant and marketed and supplied as Militry Malai Mithai. The Applicant have submitted that they have been manufacturing and supplying the impugned item by classifying the same under Chapter 1704 of the HS Code as....
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....artment to maintain the status quo by placing the impugned product under Chapter 17 with an eye on higher rate of tax that is attracts. However, we observe that the endeavour of the department should be to decide appropriate classification irrespective of the rate of tax attached to it. To be precise, while deciding classification of any product we have to take a subjective route covering all the aspects related to the product. 5.6. The applicant has, on his own understanding of the issue, pushed forward two alternate classification of the impugned product. One as a Dairy Product covered under Chapter 04 and the other as Sweet Meat covered under Chapter 21. We would like examine each of these alternate classification and also Chapter 17 under which the impugned product is being manufactured/supplied by Applicant at present. 5.7. Chapter 04 essentially covers dairy products and as per Chapter Note 4 of Chapter 04, the heading 0404 applies interalia to products consisting of natural milk constituents whether or not containing added sugar or other sweetening matter or flavoured or containing added fruit or cocoa. Now while chapter head 0401 to 0406 are meant for natural dairy pr....
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....b-headings. The impugned product i.e. 'Militry Malai Mithai' is made of Skimmed Milk Powder, Sugar, Whey Powder, Emulsifiers & flavours etc. mixed together in a semi-liquid form (neither semi-solid nor in the form of Jelly) and packed in elongated pouches/sachets and ready for consumption. The ingredients, process and final shape of the impugned product takes itself out of the family of Sugar Confectionery in any form. We are thus of a firm view that the impugned product cannot be termed and classified as Sugar Confectionery under Chapter 17 of the GST Tariff. 5.10. Finally we come to examine the impugned product vis-å-vis Chapter 2106. We observe that Chapter 21 essentially covers 'Miscellaneous Edible Products'. Obviously, the term 'Miscellaneous' indicates that this particular chapter would contain all such edible products which are not specifically covered elsewhere under the Tariff. The Chapter Headings further describes various edible preparations such as extracts of Coffee, tea, Yeast, Soups, broths, Sauces etc under Heading 2101 to 2105. Further as is the convention, Heading 2106 has been given to include all those items which are not elsewhere specified. Furthermo....