TaxTMI 
TaxTMI 
2023 (4) TMI 1033
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appellant imported the same 'Papad' from China and submitted the Bill of Entry No. 8968312 dated 20.04.2015. The Bill of Entry was examined on 25.04.2015 by the Officers of Customs (Prev.) New Delhi. The goods in the containers were found to be as per the packing list and the description of goods was given as:- "Tapioca Papad (Production Date November, 2014) (Expiry date November, 2016) (ingredients: Tapioca Starch, Salt, Sugar permitted food colours) of Assorted colours. 3. During examination of the consignment, it was observed that the product imported is described by the importer on boxes as 'China Papad'. The product was found uniform circle appearing one inch diameter light chips. They are made of 82% Tapioca Starch, 8.5% Water, 4.7% Salt and 4.8% Sugar. The product can be consumed only after frying the same in oil. It was noticed that appellant had classified their goods under CTH 19059040 whereas the goods were classifiable under Chapter 19030000 attracting 30% BCD, 6%, CVD, 2% Edn. Cess, 1% SHE and 4% SAD. The goods under import were detained under Section 110 of the Customs Act, 1962. 4. The goods being food items, provisional release of the seized goo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efor prepared from starch, in the form of flakes, grains, pearls, siftings or in similar forms. This heading covers edible products prepared from manioc starch (tapioca), sago starch (sago), potato starch (farinoca, potato tapioca, potato sago) or form similar starches (arrow-root, salep, yucca, etc.) The starch is mixed with water to form a thick paste, which is put into a strainer or perforated pan from which it falls in drops on to a metallic plate heated to a temperature of 120 °C to 150 °C. The drops form small pellets or flakes which are sometimes crushed or granulated. In another method, the starch paste is agglomerated in a steam heated vessel. The products are marketed in the form of flakes, grains, pearls, siftings, seeds or similar forms. They are used for the preparation of soups, puddings or dietetic foods. 19.05-Bread, pastry, cakes, biscuits and other bakers' wares, whether or not containing cocoa; communion wafers, empty cachets of a kind suitable for pharmaceutical use, sealing wafers, rice paper and similar products. 1905.10 - Crispbread 1905.20 Gingerbread and the like - Sweet biscu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ually made from flour and fat to which may have been added sugar or certain of the substances mentioned in Item (10) below. They are baked for a long time to improve the keeping qualities and are generally put up in closed packages. There are various types of biscuits including: (a) Plain biscuits containing little or no sweetening matter but a relatively high proportion of fat; this type includes cream crackers and water biscuits. (b) Sweet biscuits, which are fine bakers' wares with long-keeping qualities and a base of flour, sugar or other sweetening matter and fat (these ingredients constituting at least 50% of the product by weight), whether or not containing added salt, almonds, hazelnuts, flavouring, chocolate, coffee, etc. The water content of the finished product must be 12% or less by weight and the maximum fat content 35% by weight (fillings and coatings are not to be taken into consideration in determining these contents). Commercial biscuits are not usually filled, but they may sometimes contain a solid or other filling (sugar, vegetable fat, chocolate, etc.). They are almost always industrially manufactured products. (c) Savoury and salt....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Empty cachets of a kind suitable for pharmaceutical use are small, shallow cups made from flour or starch paste. They are made to fit together in pairs to form a container. Sealing wafers are cut out of thin sheets of baked, dried and sometimes coloured paste. They may also contain adhesive substances. Rice paper consists of thin sheets of baked and dried flour or starch paste. It is used for coating certain confectionery articles, particularly nougat. It should not be confused with the so-called "rice paper" made by slicing the pith of certain palms (see Explanatory Note to heading 14.04). 8.1 Learned Counsel for the appellant while submitting that the product 'Papad' (Tapioca) merits classification under CTH 1905 90 40 and not under CTH 1903 00 00, set out the difference between the manufacturing process required under the two Entries. He referred to the manufacturing process given by the Department in the show cause notice with respect to the goods covered under Entry 1903:- "the starch is mixed with water to form a thick paste which is put into strainer or perforated pan from which it falls in drops on a metallic plate heated to a temperature of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....He tried to distinguish the product under the two entries by saying that the goods covered under heading No. 1905 are not intended to be used as raw material, such as bread, pastry, cakes, biscuits, communion wafer, sealing wafers, rice paper all having common characteristics inter alia, consolidated fixed shape and the granules of the commodity cannot disperse etc. 11. The Revenue pressed for confirmation of the classification of the product in question under heading 1903 as it described the goods as 'Tapioca and substitutes therefor prepared from starch, in the form of flakes, grains, pearls, siftings or in similar forms whereas HSN 1905 describes the goods as bread, pastry, cakes etc. According to his submissions, Tapioca is not specially mentioned in CTH 1905 whereas the same is specifically mentioned in CTH 1903 as Tapioca and substitute for that. He relied on Rule 3(a) of the General Rules of Interpretation. 12. Before adverting to the applicability of the chapter heading 1903 it is necessary to know the term 'Tapioca'. The Encyclopedia Britannica described 'tapioca' as : "Tapioca a preparation of cassava root starch used as a food, in bread or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ucts are marketed in the form of flakes, grains, pearls, siftings, seeds or similar forms. The product 'Papad' cannot be classified under the category of 'similar forms' even by applying the principle of ejusdem generis. We feel that the lower authorities and the revenue have only gone by the fact that the product is mainly made from tapioca starch and the other weighing factors have been completely ignored. Therefore, we are not agreeable with their analogy. 15. We now come to CTH 1905 which covers bakers' wares and the common ingredients of such wares have been specified in the Chapter Notes is cereal flours, leaves and salt but they may also contain other ingredients such as gluten, starch, flour of leguminous vegetables, malt extract or milk, seeds such as poppy, caraway or anise, sugar, honey, eggs, fats, cheese, fruit, coco in any proportion, meat, fish, bakery improvers. The other characteristics of the food items covered under this heading as can be noticed from the Chapter Notes is that the ingredients are mixed in a form of dough for making these products. Similar is the case for making of the Papad, i.e. ingredients like flour, starch, lentils, pot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he following products: - 14. Pizza (pre-cooked or cooked), consisting of a pizza base (dough) covered with various other ingredients such as cheese, tomato, oil, meat, anchovies. However, uncooked pizza is classified in heading 19.01. 18. The settled principle for considering the issue of classification as laid down in catena of judgments is principle of common parlance, how the product is known in the commercial world. The term 'Tapioca' in Hindi is commonly known as 'Sabudana' and is available in the market in granulated form by the name of Sabudana. If a common man asks for Sabudana (Tapioca) he will not be given Papad (Tapioca) or vice-a-versa. So the basic test to determine the classification is how the product is known in the market. After referring to series of judgements, i.e Ramavatar Budhaiprasad Vs. Asstt. Sales Tax Officer (1962) 1SCR 279 and Commissioner of Sales Tax, MP, Indore Vs. M/s Jaswant Singh Charan Singh AIR 1967 SC 1454, on the principle that while interpreting items in the taxing statues resort should be not to the scientific or technical meaning of such terms but to their popular meaning, attached to them in their commercial s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. It is for precisely this reason that this Court has repeatedly applied the "common parlance test" every time parties have attempted to differentiate their products on the basis of subtle and finer characteristics; it has tried understanding a good in the way in which it is understood in common parlance." (Emphasis laid) 21. In a recent decision in Commissioner of Customs & CEx Amritsar Vs. D.L. Steels 2022(381) ELT 289, the Apex Court has referred to the aforesaid judgment in Connaught Plaza Restaurant and decided the classification of 'Anardana' on the principle that words in a taxing statue must be construed in consonance with their commonly accepted meaning in the trade and their popular meaning. 22. The authorised representative for the revenue has relied on Rule 3(a) of General Rules of Interpretation to say that heading which provides most specific description shall be preferred to heading providing a more general description. There is no doubt about the provisions of Rule 3(a), however the applicability of the same needs to be examined in t....