TaxTMI 
TaxTMI 
2019 (4) TMI 1545
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....would also mean a reference to the same provisions under the UPGST Act. Brier Facts or the Case 1) M/s. Savencia Fromage and Dairy India Private Limited, A 41, Hoseiry Complex, Phase-2 Extension, Noida, Uttar Pradesh, 201305 (here in after called the applicant) is a registered assessee under GST having GSTN : 09AAACD3039P1ZD. 2) The Applicant intends to Manufacture 'Breaded Cheese' 3) The Applicant submitted application for Advance Ruling dated 20.10.2018, with an issue:- Whether the product 'Breaded Cheese' ('impugned goods') is classifiable as 'cheese' under Heading 0406, and accordingly, subject to CGST and SGST at the rate of 6 percent each under S. No. 13 of the Schedule-II appended to Notification No. 1/2017-Central Tax (Rate) dated June 28, 2017 ('Notification No. 1/2017. and Notification KA.NI.-2-836/XI-9(47)/17-U.P.Act-1-2017-Order-(06)-2017 dated June 30, 2017 ('Notification No. 836/17) respectively. 4) On the basis of the facts disclosed in the application, the oral and written submission made at the time of personal hearing, documents produced during the personal hearing and the views submitted by the jurisdictional Officer, CGST and CX, Noida, the Authority for....
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.... of cheese. c) They further took resort to U.S. Customs Ruling HQ 963175 dated 10.10.1999 in support of the case and also drew attention to other rulings incorporated in the submission of oral arguments. d) They also brought reference to general rules of interpretation rule 3(b) in support of their proposition suggesting that the product would not get classified under 2106 90 99 being a residual entry and that essential characteristics both understood in common parlance as well from the English grammatical context would and in terms of volume 55%, their product is classified under Heading 0406. e) On 29.03.2019 through email, they submitted copies of the following Case Laws, in support of their contention:- i) Maheshwari Stone Supplying Company 2018 (12) TMI 1274 - APPELLATE AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA ii) M/s. Asian Paints Ltd. iii) Dyna Automation Pvt. Ltd. = 2018 (6) TMI 426 - AUTHORITY FOR ADVANCE RULINGS, GUJARAT iv) Hafele India Pvt. Ltd. = 2018 (8) TMI 523 - APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA v) Collector of Central Excise, Shillong Vs Wood Craft Products Ltd. = 1995 (3) TMI 93 - SUPREME COURT OF INDIA vi) O.K. Play....
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....f cheese so formed are coated with batter and covered with bread crumbs Step 3:- The battered and breaded cheese balls are then partially fried in vegetable oil Step 4:- The partially fried breaded cheese pieces are then frozen and packed. 9) From the pictures of products and packaging provided by the Appellant it can be observed that the processed cheese being main ingredient contains 55% of total volume. Composition of the product is not in dispute. So, the only question is whether the above product is to be classified under Chapter Heading 0406 or under Chapter Heading 2106. 10) Classification of goods for the purposes of GST is based on the entries in the First Schedule to the Custom Tariff Act 1975. In terms of explanation (iii) and (iv) to Notification No. 1/2017 Central Tax (Rate) dated 28-06-2017, tariff heading, sub-heading, heading and chapter shall mean respectively a tariff item, sub-heading, heading and chapter as specified in the First Schedule to the Customs Tariff Act, 1975 and the rules for the interpretation of the First Schedule to the Customs Tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedu....
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....es 'processed cheese' which is manufactured by comminuting, mixing, melting and emulsifying with heat, emulsifying or acidifying agents. one or more varieties of cheese. Such 'processed cheese' may also contain cream or other dairy products, salts, spices, flavoring, coloring and water. This indicates that cheese having undergone processes and addition of several other ingredients, are also classified under Heading 0406. 16) The Explanatory Notes clarify that presence of meat, fish, crustaceans, herbs, spices, vegetables, fruits nuts, vitamins, skimmed milk does not affect the classification of provided that the product retains characteristics of cheese. Relevant extract of the same is reproduced as under: "The presence of meat, fish, crustaceans, herbs, spices, vegetables, fruit, nuts vitamins, skimmed milk powder, etc., does not affect the classification provided that the goods retain the character of cheese" 17) The Explanatory Notes provide that cheeses which have been coated with butter or bread crumbs remain classified under this Heading whether or not they have been pre-cooked, provided that the goods retain the character of cheese. Relevant extract of the same is repr....
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.... 2106 90 80 --- Custard powder --- Other: xiv) 2106 90 91 ---- Diabetic foods xiv) 2106 90 92 ---- Sterilized or pasteurized millstone xv) 2106 90 99 ----- Other 19) The description to Heading 2106 is 'Food preparations not elsewhere specified or included', The title makes it plain and clear that the items covered there under are foods preparations which are not covered under any other Heading. HSN Explanatory Notes as well as Chapter Notes under Customs Tariff Act to Chapter 21 talk primarily about products which 'preparations not elsewhere specified or included', Supplementary Chapter Note 6 to Chapter 21 specifically provides for inclusion of sweet meats, commonly known as mishthans or mithai, namkeens, mixtures, bhujia, chabena under tariff item 2106 90 99, regardless of the ingredients. Therefore, to determine whether a product is classifiable under Heading 2106 is to check if it is not classifiable under any other Heading under the First Schedule of the Customs Tariff Act and it is specifically covered by Supplementary Chapter Note 6 above. i) After going through the ingredients and process employed for making the impugned goods it is clear that cheese forms most ....