TaxTMI 
TaxTMI 
2025 (2) TMI 146
X X X X Extracts X X X X
X X X X Extracts X X X X
....ification under the CTH 21061000 covers only "Protein Concentrates and textured Protein Substance" which are enriched of protein and therefore, only the goods namely "Protein Concentrates" are classifiable under CTH 21061000. However, the other food items such as "Protein Enriched Food Supplements" like "Whey Protein, Protein Food Supplements" are more appropriately classifiable under CTH 21069099. Thus, the department has entertained a view that Mass Weight Gainer-Nutrition Supplement" is more properly classifiable under 21069099 and therefore, the classification of the subject goods declared by the importer as CTH 21061000 should be rejected and the bills of entry are to be re-assessed in terms of the provisions of the Section 17 of the Customs Act,1962. A show cause notice dated 25.01.2023 came to be issued demanding differential amount of the customs duty as well as change in classification of imported product from CTH 21061000 to CTH 21069099 of the Customs Tariff Act. The matter got adjudicated vide impugned order-in-original dated 03.11.2023 wherein all the charges has invoked in the show cause notice have been confirmed by the Adjudicating Authority. The appellant are befor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has pointed out that it is standard practice that a 'protein concentrate' powder may include other ingredients such as added sugars, artificial flavoring, thickeners, vitamins and minerals. It has been pointed out that the amount of protein per scoop can vary from 10 to 50 grams and even if protein content varies between 10 to 50 grams, the same is called a protein concentrate in commercial parlance and same is used for body building and as a food supplement. 2.4 It has further been submitted that this can be appreciated from the Labels used on these products that the said powders do essentially contain "Whey protein concentrate" and other nutrients and flavouring materials. These powders are marketed in retail as "weight gainers/mass gainers" which is essentially a function of "protein". Though the said powders also contain other substances viz. carbohydrates, other nutrients or flavouring materials, but the fact remained that the product is nothing but protein concentrate which gives them the essential characteristics and marketability. In these circumstances, it is submitted that applying the principles enunciated under Rule 2(b) and also 3(b) of General Rule of Interpretati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilding products which includes muscle mass gain. In Collector of Central Excise Hyderabad v. Bakelite Hylam Ltd. (1997 (91) E.L.T. 13 (S.C.)] it was held that even the Decorative Laminate Sheets contained 60-70% paper, 30-40% resin, the essential character was determined by the presence of resin, though numerically in lesser quantity, by applying the rule 3 (b) of the GRIs. This case was followed in Collector of Central Excise, Ahmedabad v. Jai Laminates Ltd. (1997 (93) E.L.T. 368 (Tribunal)), which was also affirmed in the Hon'ble Supreme Court in Jai Laminates Ltd. v. Collector [1997 (93) E.L.T. 368 (Tribunal)]. The ratio of Hon'ble Tribunal Order in Rana Enterprises v. Commissioner of Customs, Mumbai (2011 (267) E.L.T. 546 (Tri. Mumbai)) is that classification has to be determined by essential character test and not by percentage of composition. Further, even in value terms, the 'essential character' of the imported products consists of high quality concentrated proteins and amino acids and not carbohydrates. One cannot go by just comparative weight of the constituents. The expression used is not "main ingredient", but "essential character". 2.6 It is humbly s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....023 the Hon'ble CESTAT, Principal Bench, New Delhi in Customs Appeal no. 50484 of 2021 in Para 31 has held that, 31. "...All the elements necessary for assessing the duty are filled in the Bill of Entry itself which is the entry of the goods made under Section 46. Thus, the Bill of Entry has factual elements such as the nature of the goods, quality, quantity, weight, transaction value, country of origin, etc. which all need to be correctly declared and elements which are in the nature of the opinion of the importer such as classification of the goods, exemption notifications which apply, etc. While the facts are verifiable as correct or incorrect, opinions can differ. The importer may find that the goods are classifiable under one CTH while the officer re-assessing the goods may classify them under a different CTH. If appealed against, different views can be taken at different levels of judicial hierarchy from Commissioner (Appeals) all the way up to the Supreme Court. Similar will be the case with the availability of the benefit of exemption notifications. 32. It is impossible for the importer to predict if the proper officer would re-classify the goods and i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 28(4) of Customs Act, 1962. In support of his arguments, the Learned Advocate has cited the decision of Hon'ble Apex Court in case of Collector of the Central Excise vs. CHEMPHAR DRUGS & LINIMENTS reported under 1989 (40) E.L.T. 276 (SC). It has further been contended that since there was no mis-declaration in the description of the import consignments, therefore, invoking of the Section 111 (m) of the Customs Act, 1962 is also not warranted and legally not sustainable. 3. The Learned Departmental Representative, Shri Girish Nair has reiterated the findings has given in the impugned order-in-original and has relied upon following decisions to support his arguments:- • Judgement of Hon'ble CESTAT, Mumbai in the case of Raptakos Brett & Co Ltd vs Commissioner of C.Ex., Raigad reported at 2014 (307) E.L.T. 565 (Tri.-Mumbai) • Judgement of Hon'ble CESTAT, Principal Bench, New Delhi in the case of Dry Tech Processors (1) Pvt Ltd vs Commissioner of C. Ex., Bhopal reported at 2015 (327) E.L.T 696 (Tri.-Del.) • Judgement of Hon'ble Supreme Court in the case of Union of India vs Jain Shudh Vanaspati reported at 1996 (86) E.L.Τ. 46....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gument that subject import consignment were of the food supplement and not of the protein concentrates and therefore, the consignment should have been classified under CTH 21069099 under the entry "Others" of Chapter Heading 2106 and not under 21061000 which primarily covers "Protein Concentrates and textured Protein Substance". 4.4 Before proceeding further in this matter, it will be relevant to have a glance at the relevant entries under Chapter Sub Heading 2106 of the Customs Tariff Act, 1975:- Tariff Item. Description of goods (1) (2) 2106 Food Preparations Not Elsewhere Specified or Included 21061000 Protein concentrates and textured protein substances 210690 -Other: --Soft drink concentrates : 21069011 --- Sharbat 21069019 --- Other 21069020 --- Pan masala 21069030 --- Betel nut product known as "Supari" 21069040 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup 21069050 --- Compound preparations for making nonalcoholic beverages 21069060 --- Food flavouring material kg. 21069070 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore proceeding further in this matter, it will be appropriate to have a reference to General Rules Of Interpretation of the Customs Tariff, the relevant rule 2 and 3 are reproduced hearing below: "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 article 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 material or substance shall be according to the principles of rule 3. 3. When by application of rule 2(b) or f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Textured Protein. Since the import consignment are made of the protein concentrate along with other substances, we are of the opinion that appropriate classification for the imported consignment will be CTH 21061000 not CTH 21069099 which is primarily for the goods not elsewhere specified and supplementary chapter note (6) provides as what kind of the goods will fall under chapter sub heading 21069099, we are opinion that this sub-headings certainly does not cover the food supplement containing protein concentrate. It can be seen that supplementary chapter note (6) provides that only products such as mithais, namkins, chabanas and such kind of the goods are classifiable under CTH 21069099. While holding above view, we also take support of this Tribunal's decision in case of Glambia Performance Nutrition India Pvt Ltd vs. Commissioner of Customs, Mundra reported at (2023)10 Centax 390 (Tri-Ahmedabad):- "43. We have considered the rival submissions. After raising the ground of assessment being provisional and piecemeal finalisation of assessment the appellants have given up this issue. The Ld counsel has sought that the issue of classification may be finalised by the tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ure of food preparation: In the present case, on perusal of the Bills of Material and Labels available on Page 288 and Page 273 of Additional Paper Book, respectively, constituents of the impugned goods have undergone a process to make them independent of its constituents [Process Chart, Additional Paper Book, p. 305]. Hence, the impugned goods are in the nature of "food preparations". This fact is undisputed between the parties. It is on this ground alone, classification under CTH 3502 and CTH 3504 of Customs Tariff are ousted as they do not relate to food preparations [HSN Explanatory Notes to CTH 3502, Para (1), pg. VI-3502-1; and HSN Explanatory Notes to 3502, Para B (6), pg. VI3504-1] [Compilation, p. 33-34] B.4 Coming to classification under CTH 1901, the impugned goods contain albumin and other protein concentrates which are acting as the base material [Bill(s) of Material, Additional Paper Book, p. 288-287].In other words, the impugned goods are food preparations of having constituent ingredients from CTH 3502 and CTH 3504, and are not food preparations of CTH 0401 to CTH 0404. Thus, it is submitted that the impugned goods do not satisfy the condition of class....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Supari" kg. 150% - 21069040 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup kg. 150% - 21069050 --- Compound preparations for making non-alcoholic beverages kg. 150% - 21069060 --- Food flavouring material kg. 150% - 21069070 --- Churna for pan kg. 150% - 21069080 --- Custard powder kg. 150% - --- Other : 21069091 ---- Diabetic foods kg. 150% - 21069092 ---- Sterilized or pasteurized millstone kg. 150% - 21069099 ---- Other kg. 150% - The products imported by the appellant are essentially Protein Concentrates of Whey Protein with additives, in different proportions. The other additives to the product can be of various kinds like flavouring agents, stabilisers etc. The argument of the appellant is that the description of Customs Tariff Heading 2106 which reads as under "CHOCOLATE AND OTHER FOOD PREPARATIONS CONTIANING COCOA" is more appropriate classif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....product as "chocolate protein powders/chocolate-flavoured protein powders" as can be seen from his submissions in para 6 above. These powders are used by the athletes and sport persons as food supplements to supplement their protein intake. The argument of the appellants is that mere presence of cocoa in the impugned products rules out classification under heading 2106 and takes it into heading 1806. 48. Such Protein Concentrates of Whey Protein are made in many flavours like Double Rich Chocolate, Chocolate Bliss, Cream Vanilla, Delicious Strawberry, Vanilla Ice-Cream, Mocha Cappuccino etc. The compositions and the main ingredients of all such products is similar. All such products, except those containing cocoa, are classified by appellants themselves under heading 2106. The dispute is solely related to the Protein Concentrates of Whey Protein containing some amount of cocoa. The appellants are seeking to classify the same under heading 1806. The assertion is based on the Chapter and heading notes of the HSN to chapter 18 and 21 and some decisions of foreign countries and international bodies. 49. To examine the issue the comparative cha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients. 3.- For the purposes of heading 21.04, the expression "homogenised composite food preparations" means preparations consisting of a finely homogenised mixture of two or more basic ingredients such as meat, fish, vegetables or fruit, put up for retail sale as infants or young children or for dietetic purposes, in containers of a net weight content not exceeding 250g. For the application of this definition, no account is to be taken of small quantities of any ingredients which may be added to the mixture for seasoning, preservation or other purposes. Such preparations may contain a small quantity of visible pieces of ingredients. SUPPLEMENTRY NOTES : 1. In this Chapter, "Pan masala" means any preparation containing betel nuts and any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredient, such as cardamom, copra or menthol. 2. In this Chapter "betel nut product known as Supari" means any preparation containing betel nuts, but not containing any one or more of the following ingredi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....TER 18 OF CUSTOMS TARIFF ACT CHAPTER NOTES OF CHAPTER 18 OF HSN NOTES:- NOTES:- 1. This Chapter does not cover the preparations of headings 0403, 1901, 1904, 1905, 2105, 2202, 2208, 3003 and 3004. 1. This Chapter does not cover the preparations of heading 04.03, 19.01, 19.04, 19.05, 21.05, 22.02, 22.08, 30.03 or 30.04. 2. Heading 1806 includes sugar confectionary containing cocoa and, subject to Note 1 to this Chapter, other food preparations containing cocoa. 2. Heading 18.06 includes sugar confectionery containing cocoa and, subject to Note 1 to this Chapter, other food preparations containing cocoa. Not alligned GENERAL This Chapter covers cocoa (including cocoa beans) in all forms, cocoa butter, fat and oil and preparations containing cocoa (in any proportion), except: (a) Yogurt and other products of heading 04.03. (b) White chocolate (heading 17.04). (c) Food preparations of flour, groats, meal, starch or malt extract, containing less than 40% by weight of cocoa calculated on a totally defatted basis, and food preparations of goods of headings 04.01 to 04.04 containing less than 5% by weight of cocoa calculated on a totally defatted basi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to 3 (a) or 3 (b), they shall be classified under the beading which occurs last in numerical order among those which equally merit consideration." We agree with the proposition made by the Ld counsel reproduced in para 8 above that product is to be classified ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....providing a more general description. However when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in the numerical order among those which equally merit consideration." 12. Applying the Rules of Interpretation particularly Rule 1, we are of the opinion that the reasoning of the Tribunal in Jyoti Overseas is unexceptionable and in our opinion the decision in Simplex-I was correctly overruled." (ii) The Hon'ble Apex Court in the case of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce with the aforementioned rules, they shall be classified under the heading appropriate for the goods "to which they are most akin". GRI-5 applies exclusively to cases and packing material, and therefore, is not apropos. GRI-6 states that the classification of goods in the sub-headings of a Heading shall be determined according to the terms of those sub-headings and any related Notes, and mutatis mutandis to the above GRIs, on the understanding that only sub-headings at the same level are comparable." (iii) In the case of Westinghouse Saxby Farmers Ltd. 2021 (376) ELT 14 (SC) the Hon'ble Apex Court has observed as follows: "31. But in invoking General Rule 3(a), the Authorities have omitted to take note of 2 things. They are : (i) that as laid down by this Court in Commissioner of Central Excise v. Simplex Mills Co. Ltd. [(2005) 3 SCC 51 = 2005 (181) E.L.T. 345 (S.C.)] the General Rules of Interpretation will come into play, as mandated in Rule 1 itself, only when no clear picture emerges from the terms of the Headings and the relevant section or chapter notes; and (ii) that in any case, Rule 3 of the General Rules can be invoked only when a particular....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the order passed by the Commissioner, which reads as under : "32. As narrated in the SCN that the tooth paste, being dentifrice has been correctly classified under the HSN and the Central Excise Tariff has been based on HSN. Accordingly it is essential to follow the correct classification of the product in question as described and classified under the relevant chapter of HSN. In this connection it may be mentioned that the Hon'ble Supreme Court in the case of CCE, Shillong v. Wood Craft Product Ltd. reported in 1995 (77) E.L.T. 23 (S.C.) in para 18 has held that the structure of Central Excise Tariff is based on the internationally accepted nomenclature found in the HSN and therefore, any dispute relating to tariff classification must, as far as possible be resolved with reference to the nomenclature indicated by the HSN unless there be an express different intention indicated in the Central Excise Tariff Act, 1985 itself. Further it may be mentioned that the Hon'ble Bombay High Court in the case of Jagdish D. Devgekar v. Collector of Central Excise, Poona reported in 1978 (2) E.L.T. (J581) in para 6 has held that the correct test in interpr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....whether or not they are used by dentist. The correct scope of the heading as per the submission of the appellants is that when one refers to HSN Item 3306 and the bifurcations as also under CETA, 1985 there is a variance seen. In other words, this bifurcation under Heading 3306 for HSN and is not pari materia and under CETA, 1985 and therefore, the sub-heading structure of HSN would not apply to CETA. The CETA proves preparation for oral or dental hygiene including Dentifrices and Denture Fixative paste and powders under Heading 3306 and at the four digit level it is para material HSN. The scope of sub-heading 3306.10 of CETA, 1985 restricts it to only 'tooth powder and paste' and any entity which is not a 'toothpowder or toothpaste' would be covered under Heading 3306.90. This submission has to be upheld." We find ourselves in agreement with the aforesaid approach of the Tribunal having regard to the cogent reasons given by it. 12. This Court in the case of Camlin Limited v. Commissioner of Central Excise, Mumbai - (2008) 9 SCC 82 = 2008 (230) E.L.T. 193 (S.C.) held that if the entries under HSN and the entries under the Central Excise Tariff a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ms Tariff. The appellants have also relied on the decision of Tribunal in the case of Anutham Exim P. Ltd. 2021 (378) ELT 611 (T-Kol.). In the said decision also in para 13 following has been observed: "13. The Schedule to the Customs Tariff Act, 1975 (commonly referred to as Customs Tariff) is based on, although it is not identical to, the Harmonised System of Nomenclature (HSN) - an internationally recognised scientific method of classifying all goods. Sometimes there are differences between the HSN and the Customs Tariff in which case, the latter is relevant for determining the duty liability under the Customs Act. In view of the explanation to this effect in the IGST Notification specifying the rates of IGST chargeable on different goods, IGST is also to be charged as per the classification under the Customs Tariff. Customs Tariff, groups goods into Sections, each of which is further divided into Chapters with a two digit Chapter number. Within each Chapter, there are four digit headings which are further divided into six digit and still further divided into eight digit tariff headings." Thus even going by the decision cited by the appellant, it is s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....paration containing betel nuts and any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredient, such as cardamom, copra or menthol. 2. In this Chapter "betel nut product known as Supari" means any preparation containing betel nuts, but not containing any one or more of the following ingredients, namely: lime, katha (catechu) and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol. 3. For the purposes of tariff item 2106 90 11, the expression "Sharbat" means any non-alcoholic sweetened beverage or syrup containing not less than 10% fruit juice or flavoured with non-fruit flavours, such as rose, Khus, Kevara, but not including aerated preparations. 4. Tariff item 2106 90 50, inter alia, includes preparations for lemonades or other beverages, consisting, for example, of flavoured or coloured syrup, syrup flavoured with an added concentrated extract, syrup flavoured with fruit juice and intended for use in the manufacture of aerated water, such as in automatic vending machines. 5. Heading 2106 (except tariff items 2106 90 20 and 2106 90 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld fall under heading 2106. The heading 2106 of the Custom Tariff Act reads as follows: 2106 FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 21061000 - Protein concentrates and textured protein substances kg. 40% - 210690 - Other : --- Soft drink concentrates : 21069011 ---- Sharbat kg. 150% - 21069019 ---- Other kg. 150% - 21069020 --- Pan masala kg. 150% - 21069030 --- Betel nut product known as "Supari" kg. 150% - 21069040 --- Sugar-syrups containing added flavouring or colouring matter, not elsewhere specified or included; lactose syrup; glucose syrup and malto dextrine syrup kg. 150% - 21069050 --- Compound preparations for making non-alcoholic beverages kg. 150% - 21069060 --- Food flavouring material kg. 150% - 21069070 --- Churna for pan kg. 150% - 21069080 --- Custard powder kg. 150% - --- Other : 21069091 ----....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f interpretation put up thereon. For exigibility to excise duty the entity must be specified in positive terms under a particular tariff entry. In its absence be deduced from a proper construction of the tariff entry. There is neither intendment nor equity in a taxing statute. Nothing is implied. Neither can we insert nor anything can we delete but it should be interpreted and construed as per the words the legislature has chosen to employ in the Act or Rules. There is no room for assumption or presumptions. The object of the Parliament has to be gathered from the language used in the statute. The contention that toilet soap is commercially different from household and laundry soaps, as could be seen from the opening words of Entry 15, needs careful analysis. It is well, at the outset, to guard against confusion between the meaning and the legal effect of an expression used in a statute. Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The court would interpret them as they stand. The object and purpose has to be gathered from such words themse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncome Tax (A.P.) v. M. Chandra Sekhar - 1985 (1) SCC 283 and Central Provinces Manganese Ore Co. Ltd. v. Commissioner of Income Tax - 1986 (3) SCC 461]. When interpreting such a provision in a taxing statue a construction which would preserve the purpose of the provision must be adopted. It is well-settled that in interpreting a taxing statute normally, there is no scope for consideration of principles of equity. It was so said by Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921 (1) KB 64 at page 71] : "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." The above observation has been quoted with approval by a Bench of three Judges of this Court in Commissioner of Income Tax, Madras v. Ajax Products Ltd. [55 STC 741]. In another decision rendered by a Bench of three Judges of this Court in The State of Tamil Nadu v. M.K. Kandaswami and others [36 STC 191] it has been observed thus: "In interp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... go into interpretative Rule 2 to 6. 55. The appellants have relied on various international decisions. The said decisions are examined as under:- (I) In the decisions given by Thomas J Russo, in US Cross Ruling N204559 dated 02.03.2012, following has been observed: "Ingredients breakdowns accompanied your November letter. Additional information was provided with your February letter and an email transmission dated February 29, 2012. Whey Protein Powder will be offered in two flavors-chocolate and vanilla. Ingredients common to both products are approximately 37-38 percent whey protein isolate, 34-36 percent whey protein concentrate, 12-13 percent fructose, 6 percent l-glutamine, 2-3 percent chicory root extract (inulin), one percent erythritol, and less than one percent, cach, colloid gum powder, sodium chloride, aminogen (plant enzyme), cream flavor, red orange extract, ascorbic acid and stevia- rebiana. Other ingredients, depending on the flavor, include about 2 percent cocoa (lecithinated), 2 percent chocolate flavor and I percent natural vanilla flavor. Both products will be put up for retail sale in containers holding 908 grams, net weight, and used....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Division wherein he has clarified as follows: "The subject merchandise is described as 100% Whey Classic - Chocolate and 100% Whey Gold Standard-Chocolate. The main ingredients in 100% Whey Classic-Chocolate are Protein Blend (Whey Protein Isolate, Whey Protein Concentrate and Whey Peptides), Cocoa (processed with alkali), Artificial Flavor, Lecithin and Acesulfame Potassium. The main ingredients in 100% Whey Gold Standard-Chocolate are Protein Blend (Whey Protein Isolate, Whey Protein, Concentrate and Whey Peptides), Cocoa (processed with alkali), Artificial Flavor, Lecithin and Acesulfame Potassium. All products are in powder form, put up for retail sale in plastic containers. The 100% Whey Classic-Chocolate comes in sizes weighing either 2 pounds or 5 pounds. The 100% Whey Gold Standard - Chocolate comes in sizes weighing 1 pound, 2 pounds, 5 pounds or 10 pounds. The product is mixed with water, milk or other beverages to make a dietary supplement. The applicable subheading for the 100% Whey Classic - Chocolate and 100% Whey Gold Standard-Chocolate will be 1806.90.90, Harmonized Tariff Schedule of the United States (HTSUS), which provides for chocolate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....106, the government has chosen to deviate from the language and prescription of the HSN by introducing Supplementary Notes to Chapter 21. Since all international rulings are based on the HSN, which is different from the Customs Tariff in respect of Chapter Heading 2106, no reliance can be placed on these decisions. 56. Ld counsel has also relied on the fact that the Explanatory Notes to the HSN were amended by the HSN Committee in its 64th Session in September 2019 to introduce a specific exclusion for Chapter heading 2106 ("Amendment to Chapter heading 2106"). The amendments were made applicable from 1st December 2019. The relevant extract of the Amendment to Chapter heading 2106 is reproduced below for ease of reference- .. CHAPTER 21 Heading 21.06 Page IV-2106-3. Item (16) .... Insert a new exclusion note (c): (c) Preparations containing cocoa, put up as food supplements for human consumption (heading 18.06). While such amendments would have relevance if the Customs Tariff is aligned with the HSN, such changes have no relevance when Government of India has chosen to deviate from the HSN by specially prescrib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e apply this ratio to the facts of the present case, the classification under CETH 2106 90 99 is more appropriate." 4.11 It can be seen from the reading of the above para that this Tribunal has allowed the classification of their product under 21069099 because the appellant in case of M/s. Raptakos could establish that the product manufacture by them was the products consumed under the category of the protein concentrate by the people who are recuperating from illness. We find that the product under import in the impugned show cause notice are not meant for use by the people suffering from any illness they are primarily used as food supplement and for building muscles, we therefore differentiate that following of this Tribunal in this case is not relevant to the matter of hand and other two decisions mentioned in the preceding para are not relevant to the imported consignment in this case. Therefore, the argument taken by the Learned AR not acceptable. 4.12 In view of entire above discussion, we are of the opinion that import consignment namely Mass Gainer- Food Supplement are nothing but protein concentrates which are use as food supplements for building muscles and since th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ablished by the department. We are also take note of the fact that for about three years i.e from March 2018 to March 2021 the department accepts the classification of the import consignments of Mass-gainer- Food Supplement under CTH 21061000. We are therefore of the opinion that extended time proviso is not invokable in this particular case and therefore the demand of the customs duty is barred by period of limitation as provided under Section 28(4) of Customs Act, 1962. While holding the above view, we take support of the decision of the Hon'ble Supreme Court in the case of Collector of the Central Excise vs. CHEMPHAR DRUGS & LINIMENTS reported under 1989 (40) E.L.T. 276 (SC), relevant extract of the same is reproduced herebelow:- "8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either....