TaxTMI 
TaxTMI 
2019 (7) TMI 95
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.... a reference to the same provision under the MGST Act. Further, henceforth for the purposes of this Advance Ruling, a reference to 'GST ACT' would mean CGST Act / MGST Act. 02. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus- "STATEMENT OF RELEVANT FACTS HAVING A BEARING ON THE QUESTION(S) ON WHICH ADVANCE RULING IS REQUIRED. M/s. Sun Pharmaceutical Industries Limited (hereinafter referred to as "Applicant') having its corporate head office at, "SUN HOUSE" Western Express Highway, Goregaon(E), Mumbai-400063 is engaged in the business of manufacturing and trading of pharmaceutical products, nutraceutical and allied products falling under Chapter 28 & 30 of the Customs Tariff Act, 1975 and is registered as per the GST laws. The Applicant is engaged in the production and marketing of a nutritional powder/food for special dietary use called Prohance - D which is specially designed to serve as a nutritional powder for people with Diabetics. The said product is sold in powder form and is required to be mixed with drinking water and used as a partial meal replacement/Breakfast replacement / Evening snack/healthy bedtim....
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....CE RULING IS REOUIRED. APPLICANT'S INTERPRETATION THE PRODUCT "PROHANCE-D (CHOCOLATE)" AS MANUFACTURED BY THE APPLICANT IS "DIABETIC FOOD" ALONE AND IS CLASSIFIABLE UNDER HEADING 2106.90.91 TO CHAPTER 21 OF THE CUSTOMS TARIFF ACT 1975 Chapter 21 of Custom Tariff Act, 1975 covers "Miscellaneous edible preparations". Heading No.21.06 under the said Chapter covers "Food preparations not elsewhere specified or included". In other words, the Chapter Heading 2106 is residuary heading which covers all the products not specified elsewhere in the tariff. The relevant extract of the said heading is reproduced under for ready reference: HS Code Description of goods unit (1) (2) (3) 2106 Food preparations not elsewhere specified or included 2106 10 10 Protein concentrates and textured protein substances.............. Kg 2106 90 -Other: --- Soft drink concentrates: 2106 90 11 Sharbat.. Kg 2106 90 19 Other. Kg 2106 90 20 --- Pan masala Kg 2106 90 30 --- Betel nut product known as Kg "Supari"........ Kg 2106 90 40 --- Sugar-syrups containing added flavouring or colo....
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....ntion that the Courts in the past have referred to statutes to assist in the classification of a certain product. A judgment on the point is that of Connaught Plaza Restaurant (P.) Ltd. v. Commissioner of Central Excise, New Delhi reported at [2003] 154 ELT 187 = 2003 (1) TMI 160 - CEGAT, NEW DELHI where the court permitted the use of a Statute (Prevention of Food Adulteration Act, 1954) for HSN classification. The court accepted the decision in State of Maharashtra Vs. Baburao Ravaji Mharulkar, AIR 1985 SC 104 = 1984 (10) TMI 249 - SUPREME COURT, where it was observed that; "..the common parlance understanding of the term ice cream can be inferred by the definition of ice cream in Prevention of Food Adulteration Act, 1954 and the Rules made thereunder; that as per paragraph A.11.20.08 of Appendix B to the Rules, 1955 Ice cream shall contain not less than 10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when any of the aforesaid preparations contains fruits or nuts or both, the content of milk fat shall not be less than 8.0 per cent by weight; that in the case of State of State of Maharashtra Vs. Baburao Ravaji Mharulkar, AIR 1985 SC ....
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....n the form of powders, granules, tablets, capsules, liquids, jelly and other dosage forms but not parenterals, and are meant for oral administration; (ii) such product does not include a drug as defined in clause (b) and ayurvedic, sidha and unani drugs as defined in clauses (a) and (h) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) and rules made thereunder; (iii) does not claim to cure or mitigate any specific disease, disorder or condition (except for certain health benefit or such promotion claims) as may be permitted by the regulations made under this Act; (iv) does not include a narcotic drug or a psychotropic substance as defined in the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and rules made thereunder and substances listed in Schedules E and El of the Drugs and Cosmetics Rules, 1945; (2) "genetically engineered or modified food" means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered organisms obtained ....
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....y use shall contain any of the ingredients specified in Schedules I or Schedule II or Schedule III or Schedule IV or Schedule VI or Schedule VII or Schedule VIII. (ii) A food business operator may use the ingredients specified in the Schedules referred to in clause (i) of sub regulation (2) in manufacturing food for special dietary use without prejudice to modifications for one or more of these nutrients rendered necessary by the intended use of the product. ......Emphasis Supplied Schedule VIII of the Notification stated above is extracted below for ready reference: Schedule - VIII [See regulations 3.(13), 6.(2)(1), 7.(2)(i), 8.(2)(i), 9.(2)(i) and 11.(1)(1)] List of prebiotic compounds S.No. Prebiotic Compounds 1. Polydextrose 2. Soyabean oligosaccharides 3. Isomalto-oligosaccharides 4. Fructo-oligosaccharides 5. Gluco-oligosaccharides 6. Xylo-oligosaccharides 7. Inulin 8. Isomaltulose 9. Gentio-ologsaccharides 10. Lactulose 11. Lactoferrin 12. Sugar alcohols such as lactitol, sorbitol, maltitol, inositol, isomalt 13. Galacto-oligosaccharides A combined reading of the above pr....
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....e understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. The Court held that in ordinary and commercial parlance in India, food is considered as 'nutritive material absorbed or taken in the body of an organisation for the purpose of growth work or repair and for the maintenance of vital processes.' In the present matter, the product under consideration undisputedly is covered under the definition of "Food" as elaborated upon by the Supreme Court above. Thus, it is pertinent to analyse whether the said food is covered under the definition of "Diabetic Food" or not. As stated above, the product under consideration is a specially designed nutritional powder which substitutes "sugar" for Maltodextrin, Fructose, Isomaltulose and Fibers (FOS, Inulin and Gum Arabic) to meetthe special dietary requirements of Diabetic people. It is pertinent to note that ingredients like Isomaltulose, FOS - Fructo oligosaccharides and Inulin are covered under Schedule VIII of the above-mentioned notification prescribed by FSSAI. Thus, the said product is treated as a "food for special dietary uses" under FSSAI. The product also has oth....
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....806.31 For the purpose of this subheading the term filled" covers blocks, slabs or bars consisting of a centre composed of e.g-, cream, crusted sugar, desiccated coconut, fruit, fruit paste, liqueurs, marzipan, nuts, nougat, caramel or combinations of these products, enrobed with chocolate. Solid blocks, slabs or bars of chocolate containing, for example, cereal, fruit or nuts (whether or not in pieces), embedded throughout the chocolate, are not regarded as "filled". Chapter 18 which only pertains to "Chocolate and other food preparations containing cocoa, intends to cover all those products which have the presence of Cocoa in it. However, we need to place reliance on Chapter 19 wherein products which have marginal content of Cocoa present in them are still classifiable under Chapter 19 and not Chapter 18. It is further submitted that Chapter 18 does not intend to cover any and all the food preparations containing cocoa. It is evident by the explanatory notes to the entry, which clearly states "The heading also includes all sugar confectionery containing cocoa ...................(other than those excluded in the General Explanatory Note to this Chapter)". It logically ....
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....tion of Chapter 19 implies that in situations where coca does not determine the character of the product, the same was not taken into account for the aforementioned cases, and a similar view should be followed in cases pertaining to classification of products to be considered as diabetic food covered under Chapter 21. Attention is drawn to the fact that Prohance - D (Chocolate), merely contains 3% Cocoa Powder. (See "Exhibit - A"). As per the explanatory notes to Chapter 19 the product under consideration, which contains less than 5% cocoa should be excluded from the scope of Chapter Heading 18 and be classifiable under Chapter Heading 2016 as a "Diabetic Food". Pertinent here to mention a judgment on point is that of The Commissioner of Central Excise vs. Britannia Industries. Ltd reported at 2005 (183) ELT 257 (Tri-Mumbai) = 2005 (1) TMI 168 - CESTAT, MUMBAI, the dispute in this case is regarding the classification of the product wafer which contain chocolate. The relevant extract of the case is: "3. Considering the material on record it is found that based on the classification of the Chocolate Cream placed between two sliced biscuits-wafers and the fact that the sai....
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....see was claiming classification of the goods under CTH 1901 while Revenue was trying to classify the same under CTH 21.06. The court in Para held that: "the ingredients of the product as has been claimed by the appellant in their letter dt. 6.6.2012 as containing (a) Skim milk powder (64.7%), (b) Lactose (15.2%), (c) Sucrose (12%), (d) Cocoa Powder (2.5%) (e) Oligofructose (2.2%),) Minerals and Vitamins is not disputed by the revenue. The main ingredients as indicated hereinabove in the letter by the appellant would indicate that the product predominantly contains milk and milk derivative. The said product would have got ordinarily classified under Chapter Heading 0404 as product containing natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included (as per the CTH reproduced hereinabove), but since the product imported by the appellant contains various other minerals and cocoa powder to the extent of 2.5%, the said product does not merit classification under Chapter Heading 0404. This would take us do the next available chapter heading which this product can be classified is 1901. The chapter notes of he....
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....hance-D Chocolate" is in nature of a diabetic food and is accorded a FSSAI classification as the same, it is apt to classify Prohance -D (chocolate) under Tariff Item No.21.069091, which covers diabetic foods in all its forms.' Prohance TM-D Chocolate INGREDIENTS: Maltodextrin, Sunflower seed oil (High oleic acid), Calcium caseinate, Whey protein isolate, Soy protein isolate, Isomaltulose (6.1 0/0), Rapeseed oil - low erucic acid, Fructose, Fructo-oligosacharides, Cocoa powder (3.0%), Gum arabic, Minerals, Inulin, Sunflower seed oil, Antioxidants (Soya Iecithin, L-Ascorbic acid, TBHQ), Myo-inositol, Choline bitartrate, Vitamins, L-Carnitine, Taurine, Artificial sweetener (Sucralose), Acidity regulator (Citric acid). Regulatory Category: FOOD FOR SPECIAL DIETARY USE. Food for people with Diabetes. DIRECTIONS FOR USE: 1. Take 175 ml of drinking water 2. Add 6 leveled scoops (Approx. 50g) of Prohance TM-D Chocolate Powder 3. Stir continuously until dissolved and consume immediately When to Consume ProhanceTM-D Chocolate? • As a partial meal replacement - 1 serving of ProhanceTM-D Chocolate can be used before a major meal (e.g., lunch/dinner), ....
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....ing 18.06 of the CTA states as under: "18.06:- Chocolate and other food preparations containing cocoa (+) 1806.10. - Cocoa powder, containing added sugar or other sweetening matter 1806.20 - Other preparations in blocks, Slabs or bars weighing more than 2 kg or in liquid, paste, powder, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kg - Other, in blocks, slabs or bars : 18.06.31 - Filled 1806.32 -Not filled 1806.90 - Other The heading also includes all sugar confectionery containing cocoa in any proportion (including chocolate nougat), sweetened cocoa powder, chocolate powder, chocolate spreads, and, in general, all food preparations containing cocoa (other than those excluded in the General Explanatory Note to this Chapter) Here attention is drawn to the language of the explanatory notes which states that the heading includes certain goods which can be broken down into the following parts: (i) All sugar confectionery containing coca in 'any proportion' chocolate nougat); (ii) Sweetened cocoa powder; (iii) Chocolate Powder; (iv) Chocolate Spreads; and ....
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....what proportion of cocoa in a food preparation is substantial proportion of cocoa to be classifiable under Chapter Heading 1 8.06, reference can be made to Chapter Headings that are specifically excluded the said chapter. Chapter Heading 19.01 of the CTA states as under: Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included; food preparations of goods of headings 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. As per the said Chap. Heading, "Food Preparations" containing "less than 5% cocoa" shall remain classifiable under Chap Hdg 19.01 irrespective of the cocoa content in the said preparations. From the said heading, it can be inferred that a threshold of "5% cocoa" can be used to determine whether a "food preparation" contains a substantial amount of cocoa to be classified under Chapter 18.06. "Prohance - D (Chocolate)" contains 3% cocoa as a flavouring agent, merely to make the produ....
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....d out under the said sub-heading shall be deemed to be classifiable only under the said sub-heading, as they are not specified elsewhere in the CTA; and (ii) Food Preparation which are not specified under any other heading shall be classifiable under the said sub-heading, or in other words, this is the residuary entry for "food preparations" nowhere else classified. Further, attention is drawn to the HSN explanatory note to Chapter Heading 21.06 of the CTA which states as under: 21.06 - Food preparations not elsewhere specified or included. 2106.10 - Protein concentrates and textured protein substances 2106.90 - Other Provided that they are not covered by any other heading of the Nomenclature, this heading covers: (A) Preparations for use, either directly or after processing (such as cooling, dissolving or boiling in water, milk etc.) for human consumption. "Prohance-D (Chocolate)" is a food preparation meant to be consumed by people by dissolving the same in water/milk. It is thus a "food preparation", squarely covered under Chapter Heading 21.06 of the CTA. It is further to note that Tariff Item no. 2106 9091 of the CTA,....
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....-digit specific entry was preferred over general entry for the classification of "cloves". In order to determine the specific entry between Chapter Headings 18.06 and 21.06 9091, it is pertinent to interpret said headings with the help of the HSN Explanatory notes. As discussed above, the HSN explanatory notes to Chapter Heading 18.06 states that "All Food preparations containing cocoa" shall be classifiable under the said Heading. Besides the fact that the Heading intends to cover only food preparations in which cocoa is contained in a substantial proportion, it is also pertinent to note that it is a "residuary entry" for food preparations containing cocoa in a substantial proportion. In the case of Commissioner of C. Ex., Mysire v. Anurag Foods & Appliances Ltd, 2009 (234) E.L.T. 641 (Tri. - Chennai) = 2008 (9) TMI 636 - CESTAT, CHENNAI it was held that Residuary entry is to be preferred only after it is exhaustively shown that the product was not covered in any specific heading. Hence it is pertinent to analyse whether Chap Hdg 21.06 of the CTA is more specific than Chap Hdg 18.06 which is residuary in nature. Chapter Heading 2106 of the CTA covers "Food Preparations not e....
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....ncluded that addition of flavouring substances shall not change the classification of the product and Prohance - D (Chocolate) shall continue to be classifiable under Tariff Item no. 2106 9091 of the CTA. Thus, there exists 2 competing entries for the classification of "Prohance - D (Chocolate): (i) Chapter Heading 1806 of the CTA which is a "residuary entry" for food preparations containing cocoa. (ii) Tariff Item no. 2106 90 91 of the CTA which a "specific entry" for "Diabetic Foods" in all forms. As per Rule 3(a) of the General Rules of Interpretation, it is humbly submitted that Tariff Item no. 2106 9091 provides the most specific description for "Prohance - D (Chocolate)". D. SPECIFIC HEADING SHOULD BE PREFERRED AND IF THERE ARE TWO SPECIFIC HEADINGS. TO WHICH A PRODUCT CAN BE REFERRED. THE ONE OCCURRING SUBSEOUENTLY WILL PREVAIL - "PROHANCE - D (CHOCOLATE)" IS CLASSIFIABLE UNDER TARIFF ITEM NO. 2106 9091 OF THE CTA In the alternative, if the authorities are of the view that both of the entries under consideration are "specific in nature", the classification of "Prohance - D (Chocolate)" shall be subject to Rule 3(b) and Rule 3(c) of the General R....
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....06 9091 should be applied in the present case. E. WHEN THERE ARE TWO COMPETING ENTRIES THE HEADING BENEFICIAL TO THE ASSESSE IS TO BE ADOPTED - "PROHANCE - D (CHOCOLA IS CLASSIFIABLE UNDER TARIFF ITEM NO. 2106 9091 OF CTA Further, cognizance must be placed on the landmark judgment in the case of Commissioner of Central Excise v. Minwool Rock Fibres Ltd. 2012 (278) E.L.T. 581 (S.C.) = 2012 (2) TMI 289 - SUPREME COURT where the court held as under: "We have already noticed the relevant entries to which we are concerned with in this appeal. No doubt there is a specific entry which speaks of Slagwool and Rock-wool under Sub-heading No. 6803.00, but there is yet another entry which is consciously introduced by the Legislature under sub-heading No. 6807.10, which speaks of goods in which Rockwool, Slagwool and products thereof are manufactured by use of more than 25% by weight of blast furnace slag. It is not in dispute that the goods in question are those goods in which more than 25% by weight of one or more of red mud, press mud or blast furnace slag is used. If that be the case, then, in a classification dispute, an entry which is beneficial to the assessee requires to ....
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....uct is not advertised as a Diabetic Food. The product is instead advertised as a product intended for the wellbeing and general health of a human being. It is nowhere projected as a product for Diabetic patients only. The literature shows that the product contains Prohance -D Powder which contains ingredients that helps to body to repair and regain the energy and the tissues and help to build them. It shows that the product is not exclusively meant only for Diabetic purpose. The heading 2106 occurs in Schedule II, Schedule III and Schedule IV. Schedule II covers products taxable @ 12%. In the said Schedule, Diabetic Foods are covered and I have already given my say as to how the product is not covered by the schedule. In Schedule III of 18%, at item no 23, against heading 2106 the following description is found:- All kinds of food mixes including instant food mixes, soft drink concentrates, Sharbat, Betel nut product known as "Supari", Sterilized or pasteurized millstone, ready to eat packaged food and milk containing edible nuts with sugar or other ingredients, [other than Namkeens, bhujia, mixture, Chabena and similar edible preparations in ready for consumption form]....
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.... snack/healthy bedtime snack or as directed by a Physician/ dietician for diabetic person. They have submitted that the said product would be marketed & sold as a Diabetic food for Diabetic people only. They have submitted that Diabetic Food of Heading No. 2106 90 91 are covered by Sl- No. 46A of Schedule II to Notification No. 1/2017-CentraI Tax (Rate) dated 30.06.2017 and attract effective GST @ 12%. They have also submitted that "Chocolates and other food preparations containing cocoa" falling under Heading No. 18.06 are covered by SI. No. 12C of Schedule III to Notification No 1/2017-Central Tax (Rate) dated 30.06.2017 and attract GST @ 18%. They are classifying the vanilla variant of their product as diabetic food and their query is regarding classification only in respect of the chocolate variant of their product where chocolate flavor is used in order to make the said product appealing to the end consumer, without altering the diabetic nature of the same. According to their submissions, "Prohance-D (Chocolate) manufactured by them as a diabetic food alone is classifiable under Heading 2106 90 91 of the Customs Tariff Act. The applicant has submitted that FSSAI ha....
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....intenance, and health of the body. As per the definition given in the Merriam Webster Dictionary, food'; is a material consisting essentially of protein, carbohydrate, and fat used in the body of an organism to sustain growth, repair, and vital processes and to furnish energy ; can be inorganic substances absorbed by plants in gaseous form or in water solution ; a nutriment in solid form or something that nourishes, sustains, or supplies. The FSSAI Act has defined food as : "(j) Food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (2k), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. As per Webster's intern....
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....special dietary uses or functional foods or nutraceuticals or health supplements " means: (a) foods which are specially processed or formulated to satisfy particular dietary requirements which exist because of a particular physical or physiological condition or specific diseases and disorders and which are presented as such, wherein the composition of these foodstuffs must differ significantly from the composition of ordinary foods of comparable nature, if such ordinary foods exist, and may contain one or more of the following ingredients, namely: (i) plants or botanicals or their parts in the form of powder, concentrate or extract in water, ethyl alcohol or hydro alcoholic extract, single or in combination; (ii) minerals or vitamins or proteins or metals or their compounds or amino acids (in amounts not exceeding the Recommended Daily Allowance for Indians) or enzymes (within permissible limits); (iii) substances from animal origin; (iv) a dietary substance for use by human beings to supplement the diet by increasing the total dietary intake; (b) (i) a product that is labelled as a "Food for special dietary uses or functional f....
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....mely, granules, capsules, tablets, pills, jelly, semi-solid and other similar forms, sachets of powder, or any other similar forms of liquids and powders designed to be taken in measured unit quantities with a nutritional or physiological effect; (iv) A food business operator may formulate an article of food for special use in formats meant for oral feeding through a enteral tubes but shall not be used for parenteral use; (v) An article of food for special dietary use shall not include the normal food which is merely enriched or modified with nutrients and meant for mass consumption, intended for improvement of general health for day to day use and do not claim to be targeted to consumers with specific disease conditions and also not include the article of food intended to replace complete diet covered under food for special medical purpose specified in regulation 9. (2) (i) The articles of food for special dietary use shall contain any of the ingredients specified in Schedules I or Schedule II or Schedule III or Schedule IV or Schedule VI or Schedule VII or Schedule VIII (ii) A food business operator may use the ingredients specified in the Schedules referred ....
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....ic food. (i) Isomaltulose is a disaccharide carbohydrate composed of glucose and fructose. Isomaltulose is hydrogenated to produce isomalt, a minimally digestible carbohydrate that like dietary fiber is fermented in the large intestine or colon to short-chain fatty acids. Isomalt is used as a sugar replacer, for example in sugar-free candies and confectionery. (ii) Gum arabic is used in the food industry as a stabilizer, emulsifier and thickening agent. Gum Arabic, a complex polysaccharide, is a soluble dietary fibre, primarily indigestible to humans and considered non-toxic and safe for human consumption. It is not degraded in the intestine, but fermented in the colon under the influence of microorganisms. (iii) Inulins, a soluble fiber are a group of naturally occurring polysaccharides. Inulin has several important peal health benefits. It may promote gut health, help lose weight and help manage diabetes. Inulin is commonly used by mouth for high blood fats, including cholesterol and triglycerides. It is also used for weight loss, constipation, diarrhea, and diabetes. Inulins and oligofructose are not digested by human enzymes, making them unavailable for glucose release....
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.... temperature, allowing diabetics to use less of it per serving. Fructose consumed before a meal may reduce the glycemic response of the meal. Fructose-sweetened food and beverage products cause less of a rise in blood glucose levels than do those manufactured with either sucrose or glucose. In view of the above it can be said that the subject product, Prohance-D is different from the parent product in as much as it contains extra ingredients as mentioned in (i) to (vi) above, ingredients which along with the other regular ingredients may assist diabetics in replacing a meal or part of it. However we also find that the product is also advertised as providing Energy, Immune Health, Heart Health, Vitamins and Minerals and maintains cholesterol levels. On the container there is a mentioned that "Prohance-D is a specifically designed sugar free and low GI product. It contains Isomaltutose a low glycemic carbohydrate that helps minimize blood sugar spikes. It provides energy from high quality protein, fat and is rich in dietary fibre and MUFA that heart health." We therefore find from the above that the subject product is also advertised as having various other health benefits and ....