TaxTMI 
TaxTMI 
2021 (7) TMI 535
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....Whether Jackfruit Chips, Banana Chips (made out of both raw as well as ripe banana), Banana Chips (masala) sold without BRAND NAME are classifiable as NAMKEENS and are covered by HSN Code 2106.90.99 and taxable under Entry 101A of Schedule of Central Tax (Rate) Notification No. 1 of 2017? 2. Whether the commodities Sharkarai varatty and Halwa sold without BRAND NAME are classifiable as SWEET MEATS and covered by HSN Code 2106.90.99 and taxable under Entry 101A of Schedule of Central Tax (Rate) Notification 1 of 2017? 3. Whether roasted and salted / salted / roasted preparations such as of Ground nuts, Cashew nut and other seeds are NAMKEENS and when sold without a brand name, can they be classified under HSN 2106.90.99 and taxed under Entry 101A of Schedule 1 of Central Tax (Rate) Notification No.1/2017? 4. Whether salted and masala chips of Potato and Tapioca are classifiable as Namkeens and when sold without a brand name, can they be classified under HSN 2106.90.99 and taxed under Entry 101A of Schedule 1 of Central Tax (Rate) Notification No.1 of 2017? 4. Contentions of the Applicant: 4.1. The Jackfruit Chips, Banana Chips, Sarkara Varatty and Halwa are sold without bran....
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....r directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption; 2106 Description of goods FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 2106 90 20 Entry Pan masala 2106 90 30 Entry Betel nut product known as "Supari" Chapter 21 of Customs Tariff Act Supplementary Note No.6 Tariff item 2106 90 99 includes sweet meats commonly known as "Misthans" or "Mithai" or called by any other name. They also include products commonly known as "Namkeens", "mixtures", "Bhujia", "Chabena" or called by any other name. Such products remain classified in these sub-headings irrespective of the nature of their ingredients. 2106 90 99 Entry Other 4.3. IN RE: P.M. SANKARAN [KER/53/2019 Dated 21st June 2019] and KER/66/2019 dated SEPTEMBER 30, 2019 of this Honourable Authority, it is held that Jackfruit Chips, Banana Chips and Sharkara Varatty fall under HSN 2008.19.40 and have to be classified under Entry 40 of Schedule II of Notification No.1 of 2017 and tax at 12% is liable to be paid. Relevant entries are reproduced below for easy reference; Entry 40 / Sch. II Notfn No.01 of 2017 HSN 2008 Fruits, nuts and other ....
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....ustoms Tariff Act. Note No.1 of Chapter 20 states that the chapter does not cover vegetables, fruit or nuts, prepared or preserved by the processes specified in Chapter 7, 8 or 11. Banana and jackfruit are classified under Chapter 8 of Customs Tariff Act, with HSN Code 0803 and 0810.90.90 respectively. So, chips and Sharkara Varatty are not covered by HSN 2008 and hence do. not fall under Entry 40 of Schedule II of Central Tax (Rate) Notification No.1 of 2017. Entry 2008 19 40 of Customs Tariff Act refers to "Other roasted and fried vegetable products... Banana and Jackfruit being not vegetables, its chips cannot be classified under this HSN. 4.5. Further, the Entry in Customs Tariff Act uses the words "roasted and fried". So, it is a cumulative condition. Banana Chips, Jack Fruit Chips and Sharkara Varatty are made by frying banana/ jack fruit in edible oil. Being fruits and being not "ROASTED AND FRIED", these cannot be classified under 2008.19.40. In any case, banana and jack fruit are covered by HSN Code 0803 and 0810.90.90 respectively and on this primary ground they cannot be classified under HSN 2008 Advance Ruling IN RE: P.M. SANKARAN [KER/53/2019 Dated 21st June 2019] rul....
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....bly to cater to their particular customers as part of their business method or marketing method. But, these Isolated or individual choices or taste for marketing particular goods will not and cannot render such goods as one covered by the words "bakery products"." "8. We are of the view that the Appellate Tribunal was in error in holding that the words "bakery products" will take within its fold anything dealt with or marketed or connected with the bakery. In order to say that particular goods are covered by the said word, those goods should be understood in their natural, ordinary or common parlance as bakery goods. So viewed, we are of the opinion that the mere fact that banana chips, tapioca chips, murukku, achappam, pakkavada and mixture were sold or marketed by the dealer, who is really a baker"cannot be covered by the entry "bakery products" within the meaning of those words as occurring in the Kerala General Sales Tax Act. This is so especially in the context and collocation of words occurring in the First Schedule to the Kerala General Sales Tax Act." 4.7. The ADVANCE RULING NO. KER/66/2019 dated SEPTEMBER 30, 2019, was also a case where applicant himself had raised the ....
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....EGULATIONS, 2011, it is stated that banana chips and similar fried products such as Chiwda, Bhujia, Dalmoth, Kadubale, Kharaboondi, Spiced and fried dais, sold by any name are traditional foods ie., Snacks of Savouries (Fried Products). 5. COMMENTS OF THE JURISDICTIONAL OFFICER: The application was forwarded to the jurisdictional officer as per provisions of Section 98(1) of the CGST Act. The jurisdictional officer has not offered any comments and hence it is presumed that the jurisdictional officer has no specific comments to offer. It is also construed that there are no proceedings pending on the issue against the applicant. 6. PERSONAL HEARING: The applicant was granted opportunity for personal hearing on 06.01.2021 by virtual mode. Shri. C. Seshadrinadan, CA Authorised Representative of the applicant attended the personal hearing. He reiterated the contentions made in the application and also submitted a Hearing Note summarising the submissions made in the application. Since we have already extracted in detail all the contentions raised by the applicant in the application, the contents of the argument note is not reproduced to avoid repetition. 7. Discussion and Conclusion....
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.... Sections, Chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions; Rule 2: (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance' shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one ma....
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....both the conditions are to be cumulatively satisfied for classifying a product under the category of roasted and fried products. Since according to chapter notes and description of tariff items, the products are classifiable under specific headings of Chapter 20 and hence they cannot be classified under Heading 2106 as food preparations not elsewhere specified or included. 7.6. Accordingly, applying the principles of interpretation in Rule 2 of the General Rules for Interpretation of the First Schedule to the Customs Tariff Act, 1975 the Jackfruit Chips, Banana Chips, Sharkara Varatty, Tapoica Chips and Potato Chips (Whether salted/ masala or otherwise) are classifiable under Tariff Heading 2008 19 40 of the Customs Tariff Act, 1975. Regarding classification of roasted /salted / roasted and salted Cashew nuts, Ground nuts and other nuts there are specific headings under Chapter 20 that covers the products. Accordingly, roasted /salted / roasted and salted Cashew nuts are classifiable under Tariff Heading 2008 19 10 and other roasted /salted / roasted and salted nuts and seeds are classifiable under 2008 19 20 of the Customs Tariff Act, 1975. The product Halwa being prepared using ....