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2024 (12) TMI 1734
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....hener. The applicant submitted as under: 1.1. That the firm M/s R.V. International is duly registered with the respective statutory authorities viz. GST Department, Income Tax Department and DGFT Department, New Delhi. The Importer Exporter Code of the company is AGQPD1949R and the GST number is 07AGQPD1949R1ZN. The applicant has been regularly filing its statutory returns with the concerned departments and authorities. The applicant is in the process of setting up its business of import / trading of (1) Menthol Scented Supari and (2) Flavored and coated Illaichi (hereinafter referred to as the 'subject goods") in India for use in mouth freshener. The appellant intends to import the said goods mainly from Burma (Myanmar), Indonesia, Malaysia, Sri Lanka, Thailand, Cambodia, UAE and Singapore etc. in India. Therefore, the applicant is approaching this Hon'ble Authority, seeking advance ruling qua the subject goods as mentioned in the following paras of this application as the applicant intends to import the same in India and hence would like to have a proper understanding and clarification as to whether the goods being imported shall be covered under a particular classi....
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.... (xii) Packaging in industrial packs of 5kgs to 80kgs as per requirement. (xiii) This process however, does not contain any materials like Lime, Katha (catechu) and tobacco. 1.5. That thus, the raw material i.e. betel nut, thus undergoes a substantial change in its appearance as well as in its chemical characteristics on account of various processes mentioned herein above and thus the tannin and arecoline and other content of raw betel nut/areca nut get substantially changed and therefore, after process as mentioned herein above on the betel nut, it become a distinctive product of betel nut which is processed and prepared and thus making it suitable for immediate consumption also. 1.6. That as per the supplementary notes (2) of Chapter 21 of Customs Tariff Act, 1975, "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 and tobacco whether or not containing any other ingredients, such as cardamom, copra or menthol." From the process mentioned herein above, it is clear that the product though uses the betel nut / areca nut as main raw material however....
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....in above are covered and classifiable under CTH 2106 9030 of the Customs Tariff Act, 1975. 1.9. That in terms of the indicated additives like flavors and menthol etc., the product is classifiable under 2106.90.30 in terms of Supplementary Note 5(b) to Chapter 21 which reads as: Heading 2106 (except tariff items 2106 90 20 and 2106 90 30), inter alia, includes: (b) Preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption; However, as per the Explanatory Notes to Chapter 08, fruits and nuts of this Chapter remain classified here even if put up in airtight packing (e.g. dried prunes, dried nuts in cans). In most cases, however, products put up in these packing have been prepared or preserved otherwise than as provided for in the headings of this Chapter, and are therefore excluded from chapter 8 (and will fall under Chapter 21). Therefore, the processes mentioned in Chapter 08 are absolutely different from the processes performed on the subject goods; they are excluded for the purpose of classification from Chapter 8 of the Customs Tariff Act, 1975. 1.10. T....
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....ents of the CBIC Circular No. 163/19/2021-GST dated 06.10. 2021 are applicable to the present case by virtue of legal framework as discussed herein above. Classification and applicable rate of duty under GST are clarified in the paras reproduced from the CBIC Circular No. 163/19/2021-GST dated 06.10.2021 from F. No. 190354/206/2021-TRU. By virtue of application of section 3(7) of the Customs Tariff Act, 1975 "any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty percent as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8) for sub-section (8A), as the case may be. 1.12. Based on the contents of the CBIC Circular No. 163/19/2021-GST dated 6th October, 2021, it is clear that the provision of section 3(7) of the Customs Tariff Act, 1975 applies to scented supari classifiable under CTH 2106 90 30. In the instant case, menthol scented supari does not contain lime, katha (catechu) and tobacco and it will specifically contain menthol. Therefore, due to carrying out of ....
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....lar No. 163/19/2021-GST dated 06.10.2021, same merits to be classified under Tariff Heading 2106 9099. VALUE ADDITION 1.13. That it is submitted that Menthol Scented cutting supari the manufacturing process involves intricate and skilled manufacturing process on raw produce the value of the processed materials is enhanced at each and every stage. For example, the refining stage improves the quality of major inputs. The sweetening and blending stage require use of costly raw materials like fragrances and flavours which enhances the manufacturing cost. THE PREPARATION & CHANGED NATURE 1.14. That the process before blending mainly adds quality and shelf life. While blending, the fragrance imparts a distinct function and nature to the finished articles which have than the major function as suppression of bad mouth odour. In this process while the lipids of fragrances retain flavour, the sweetening agents remain inert till mixed with saliva. The water in saliva after mixing with the sweetening agents releases the retained flavours in mouth which suppresses bad mouth. 1.15 That the preparation, by use of above ingredients, results in a manufacturing product which is distin....
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....classification and interpretation makes it amply clear that the classification of any product under Customs and GST has to remain same for all purposes in both laws. This would also be required with a view that while filing a bill of entry, a product cannot be classified in two different headings for the purpose of charging basic customs duty and IGST. 1.20. That a legal framework governed by Customs Tariff Act, 1975, specifically section 3(7), Chapter notes of Chapters 8, 9 and 21, section notes, supplementary notes of chapter 8 of the Customs Tariff Act, 1975 and CBIC Circular No. 163/19/2021-GST dated 06.10.2021 issued based on the recommendations of the GST Council in its 45th meeting held on 17.09.2021 clarifying classification aspects related to both the products covered in the instant application and explanations (iii) and (iv) of the IGST rate notification vide entry at S. No. 23 of Schedule III of Notification No. 1/2017-Central Tax (Rate) dated 28-6-2017, amended from time to time. Therefore it can be seen that both these products will be subjected to few processes before the import and it is essential to consider the contending classifications for both these products.....
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.... as described and carried out on the subject product are essential for the preparation of the subject goods as mouth freshener and goods after being subjected to such processes cannot be ordinarily used for any other purpose. The betel nut products, commonly known as supari is covered under sub-heading 21069030 of this chapter. In this regard CBIC Circular No. 163/19/2021-GST dated 06.10.2021 for its claim to the classification of scented supari. 1.24 Insofar, as flavoured and coated illaichi (cardamom) is concerned, the contending classifications can come from the chapters 09 and 21 of the Customs Tariff Act, 1975. Chapter 09 covers Coffee, Tea, Mate and Spices and Heading 0908 covers Nutmeg, Mace and Cardamoms. The relevant extract from the Tariff headings in chapter 09 is reproduced below: - Cardamoms: 0908 31 -- Neither crushed nor ground: 0908 31 10 --- Large (amonum) 0908 31 20 --- Small (ellettaria), alleppey green 0908 31 30 --- Small, coorge green 0908 31 40 --- Small, bleached, half bleached or bleachable 0908 31 50 --- Small, mixed 0908 31 90 --- Other The Notes to the chapter provide as follows: ....
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....ea (heading 09.02); (d) Spices or other products of headings 09.04 to 09.10; 2106 - Food Preparations Not Elsewhere Specified or Included 2106 10 00 - Protein concentrates and textured protein substances 2106 90 - Other : 2106 90 20 --- Pan masala 2106 90 30 --- Betel nut product known as "Supari" --- Other: 2106 90 91 The Supplementary Note 5(b) to Chapter 21 reads as: "5. Heading 2106 (except tariff items 2106 90 20 and 2106 90 30), inter alia, includes: (b) preparations for use, either directly or after processing (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption". 1.27. That in fact for similar product, the Hon'ble Authority of CAAR, Mumbai has already issued Ruling thereby declaring the above said goods falls under CTH 21 and not CTH 8. The said ruling has been given in the case of M/s BAG Industries, vide (2023) 2 Centax 213 (A.A.R. - Cus. - Mum.)/2023 (384) E.L.T. 119 (A.A.R. - Cus. - Mum.) on 31-10- 2022 by CAAR, MUMBAI. In view of above, the applicant would like to have advance ruling on the following issue ....
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....dustries, vide (2023) 2 Centax 213 (A.A.R. - Cus. - Mum.)/2023 (384) E.L.T. 119 (A.A.R. - Cus. - Mum.) on 31-10- 2022 by CAAR, MUMBAI. f. That the applicant has made the present application bonafide and seeks the kind indulgence of this Hon'ble authority thereby seeking the subject goods under classification CTH 21 and more particularly under the CTH 2106 90 30. 2. As per the provisions of CAAR Regulation, 2021, the complete application of the applicant was provided to the concerned custom port, i.e. ICD Tughlakabad (Import), New Delhi and requested to furnish the requisite comment in the instant matter. The port authority vide letter dated 16.12.2024 furnished the requisite comments in the matter, wherein the port authority has opposed for the rulings in the instant matter. The comments of the port authority in the instant matter, are as under: 2.1 3(i). Eligibility of the applicant, in terms of section 28-E (c) of the Customs act, 1962 to seek such advance ruling. Reply: No comments as the same pertains to EDI Section. 3(ii). Applicability of proviso (1) of section 28-I (2) of the Customs Act, 1962 regarding the question raised in the application. Repl....
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....rather aim to preserve or enhance the appearance or appeal of the betel nut." (Para 19) 1.3 Consistency with Harmonized System of Nomenclature (HSN) According to HSN guidelines, products in Chapter 8 may undergo limited processing like slicing, roasting, or adding minor quantities of stabilizers without altering their classification. "Fruit and nuts of this Chapter may be whole, sliced, chopped, shredded, stoned, pulped, grated, peeled, or shelled. The addition of small quantities of sugar does not affect the classification of fruit in this Chapter." 2.3 Classification of Flavoured and Coated Illaichi 2.3.1 Distinction Between Chapter 9 and Chapter 21 Chapter 9 explicitly covers cardamom under heading 0908, and supplementary notes to this Chapter clarify that mixtures or additives do not alter classification if the essential character of the spice is retained. Coating and flavoring processes on cardamom do not transform it into a "preparation" as required for classification under Chapter 21. * Judgment: M/s S.T. Enterprises "The goods retain their essential characteristics as whole betel nuts and do not qualify as preparations under C....
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....ty of CBIC Circular No. 163/19/2021-GST * While the applicant references the CBIC Circular for GST classification under S. No. 23 of Schedule III, this is not directly applicable in the context of Customs classification. The Customs Tariff Act and GST laws are separate regimes, and while consistency between the two is desirable, the Customs Tariff Act has its own rules of classification based on Section Notes, Chapter Notes, and the Harmonized System. * Section 3(7) of the Customs Tariff Act, 1975 makes it clear that the classification for Customs must be determined in accordance with the rules of interpretation of the Customs Tariff, and not simply by reference to GST classifications. Therefore, the classification under Customs does not automatically align with the GST treatment for these products. 2.6. General Rules of Interpretation (GRI) According to Rule 3(a) of the General Rules for Interpretation: "The heading which provides the most specific description shall be preferred to headings providing a more general description." Betel nuts and cardamom have specific classifications under Chapter 8 and Chapter 9, respectively. Processes applied t....
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....want to avail opportunity of personal hearing in the matter. The AR of the applicant vides their email dated 18.12.2024 submitted additional submission and informed that the applicant does not want any further opportunity of personal hearing in above said instant matters and requested for taken the rebuttal and additional submissions, on record. Rebuttal and Additional Submission: 4. The A.R. of the applicant has submitted rebuttal and additional submission to the comments of customs port authority, which is as under: - i That it is submitted that comments on the application filed by the respondent customs port Ld. Commissioner of Customs, ICD TUGHLAKABAD, NEW DELHI, wherein it opposed the advance ruling sought by the applicant for the goods i.e. " Menthol Scented Supari " under CTH 2106 90 30 is without any justification. ii. That it is submitted that in India, there exists a vast market for Betel Nut-based products, commonly known as Supari. This flavored preparation consists of crushed or cut betel nuts combined with various ingredients, including menthol, Nagarmotha oil, gulab oil, cardamom, clove oil, pacholi oil, liquorice (mulethi), sweeteners, and ed....
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....ity of CBIC Circular and GST Council Recommendations - The Central Board of Indirect Taxes and Customs ("CBIC") Circular No. 163/19/2021- GST dated October 6, 2021, clarifies the classification of scented supari. - The GST Council's 45th meeting recommendations support classification under 2106.90.30 with an 18% IGST rate. ix. Classification under Customs Tariff: - Contending classifications are Chapter 8 (dried fruits/nuts) and Chapter 21(miscellaneous edible preparations). - Chapter 8's relevant notes do not apply since the processes exceed partial rehydration or preservation. - Chapter 21's supplementary note 2 defines "betel nut product known as Supari" as preparations containing betel nuts without lime, katha, or tobacco. In view of the above it can be concluded that Menthol scented supari is appropriately classified under 2106.90.30 as a betel nut preparation and the CBIC Circular and GST Council recommendations support this classification. x. Value Addition and Manufacturing Process: - The manufacturing process involves skilled labour and enhances the value of raw materials. ....
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.... a Common Judgment dated 1-8-2023, held that when there is a specific clause under Chapter 20, the classification cannot be made under Chapter 8. xvii. That for the correct classification of 'Menthol Scented Supari', we may refer to some of the relevant statutory provisions and supplementary notes. Chapter 08 (02) deal with 'other nuts, fresh or dried, whether or not shelled or peeled. Chapter Note 3 to Chapter 8 reads thus: "3. Dried fruit or dried nuts of this Chapter may be partially rehydrated or treated for the following purposes: (a) For additional preservation or stabilization (for example, by moderate heat treatment, sulphuring, or the addition of sorbic acid or potassium sorbate); (b) To improve or maintain their appearance (for example, by the addition of vegetable oil or small quantities of glucose syrup), provided that they retain the character of dried fruit or dried nuts." Chapter 21 (06) deals with 'Food preparations not elsewhere specified or included'. The Supplementary Note 2 in Chapter 21 runs thus: '2. In this Chapter "betel nut product known as Supari" means any prep....
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....apter 8 applies to the product in question, the Advance Ruling Authority cannot fall back on Chapter 21 and classify the product under Chapter 21. In this regard it is submitted that Supplementary Note 2 specifically deals with 'Supari' and states that it is any preparation containing betel nuts, but not containing lime, katha (catechu) and tobacco, whether or not containing cardamom, copra or menthol. Therefore Supplementary Note 2 placed under Chapter 21 would certainly cover the product in question, viz., 'Menthol Scented Supari'. Respondent is nowhere saying that the product in question contains lime, katha (catechu) or tobacco. Only if any of these 3 ingredients are used, then the betel nut product known as 'Supari' would fall outside the purview of Chapter 21. xx. Thus, reading Chapter 21 as a whole, harmoniously with Supplementary Note 2, it is evident that the legislature has specifically carved out an entry for "Menthol Scented Supari" which contains betel nut pieces, menthol added to it and does not include any of the 3 items viz., lime, katha (catechu) or tobacco. xxi. Applying the General Rules for Interpretation of Import Tarif....
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....the Hon'ble Supreme Court in Crane Betel Nut Powder Work's case, the issue was relating to whether crushing of betel nut and adding ingredients to it would involve any 'manufacture' or not and in that context it was held that the process of boiling, slicing etc. and adding flavours to the betel nut would not result in altering the nature and characteristics of the product and therefore the classification would have to be made under Chapter 8. It is submitted that post this judgment, two important subsequent factors have intervened. Firstly, vide Finance (No.2) Act, 2009 dated 19th August, 2009, there has been an insertion of Note 6 in Chapter 21, which specifically relates to Tariff Item 2106 90 30 relating to 'supari' and stating that the process of adding or mixing cardamom, copra, menthol, spices, sweetening agents or any such ingredients other than lime, katha (catechu) or tobacco to betel nut, in any form, shall not amount to "manufacture". Secondly, w.e.f. 1-7-2017, the GST Act was introduced and the concept of taxation itself has undergone a change from 'manufacture' to 'supply'. The Supplementary Note 2 in Chapter 21 of CGST Tariff is....
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....or 'Supari' under Chapter 21, the question of classifying it under Chapter 8 does not even arise, especially when this was neither the issue before the Apex Court nor the basis on which the decision was rendered. It is also trite law that a decision is only an authority for what is decided and it cannot be extended to something which has not been decided by applying the process of a logical deduction. In P.Rajendran v. The Assistant Director, in Crl.O.P. No. 19880 of 2022 dated 14-9-2022, the Division Bench of Madras High Court, in fact, one of us being a part of the Bench (Justice. RMT.TEEKAA RAMAN) held that "a case is only an authority for what it decides". As observed by Lord Halsbury in Quinn v. Leathem, reported in 1901 AC 495, quoted hereunder for easy reference: " ... that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actuall....
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....ot under the heading 2106 9030. 5.3 Further, Chapter 21 covers miscellaneous edible preparations. The relevant supplementary note 2 to the said Chapter lays down that,- "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". In this Chapter, the related entry, with respect to betel nuts, is the sub- heading 21069030, i.e. betel nut products known as supari. On the other hand, Chapter 8, covers Edible fruit and nuts; peel of citrus fruit or melons. In Chapter 8, areca nuts, whole, split, ground, and two residuary sub-headings are under 08028010, 20, 30, 90, and 08029000, respectively. Further, Note 3 to Chapter 8 reads as under :- "3. Dried fruit or dried nuts of this Chapter may be partially rehydrated or treated for the following purposes: (a) for additional preservation or stabilisation (for example, by moderate heat treatment, sulphuring, the addition of sorbic acid or potassium sorbate); (b) to improve or m....
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....are intended for cleaning, enhancing preservation; and for enhancing appearance or presentation, which are clearly covered by the Chapter Note 3 to Chapter 8. 5.7 The Hon'ble Apex Court had affirmed the order dated 26.02.2021 of CESTAT, Chennai Bench in case of S.T. Enterprises- 2021(378) E.L.T. 514 (S.C.) and Ayush Business Overseas- 2021 (378) E.L.T. A142 (S.C.), wherein CESTAT had held that boiled betel nuts are appropriately classifiable under Chapter 8, and not Chapter 21 relying on the principles observed in the Hon'ble Supreme Court's decision in case of Crane Betel Nut Powder Works case- 2007 (210) E.L.T. 171 (S.C.) 5.8 Furthermore, Hon'ble Supreme Court had held the following principle in case of Crane Betel Nut Powder Works case: "3.1. In our view, the Commissioner of Customs and Central Excise (Appeals) has correctly analysed the factual as well as the legal situation in arriving at the conclusion that the process of cutting betel nuts into small pieces and addition of essential/non-essential oils, menthol, sweetening agent etc. did not result in a new and distinct product having a different character and use." 5.9 Further, it could be s....
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....id order is as follows: "23. The CAAR had ruled that that the processes for making API Supari, flavoured supari, unflavoured supari chikni supari, boiled supari, and boiled and cut supari are, essentially, the processes of cleaning, preservation and enhancing the appearance of presentation and thus, were covered under Note 3 of the Chapter 8 of the Customs Tariff. 24. Insofar as flavoured supari is concerned, the CAAR relied on the decision of the Supreme Court in Crane Betel Nut Powder Works v. Commissioner of Customs and Excise, Tirupathi & Anr. (supra) and held that the same would continue to be classified under Chapter 8 of the Customs Tariff. 25. We find no infirmity with the aforesaid view. As noted above, the decision in the case of Crane Betel Nut Powder Works v Commissioner of Customs and Excise, Tirupathi & Anr. (supra) (supra) squarely covers the issue involved in the present cases." 5.11 The claims made by the applicant and the ruling sought is devoid of merits and legally untenable on the following grounds: As per the Indian Customs Tariff, CTH 2106 is applicable for "Food preparations not elsewhere specified or included". Therefore, to....
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....s should be determined according to the terms of those subheadings, related subheading notes, and mutatis mutandis, to the above rules. 5.13 The Port Commissionerate has correctly cited the Principles of: Specificity, Essential Character, Degree of Processing, Intended Use & Exclusion to establish the classification under 0802. The applicant's point is that the addition of menthol constitutes a form of preparation, potentially shifting classification to 21.06, however, this argument is weakened by the allowances made in Chapter 8 for minor treatments and the principle of specificity favouring 08.02. 5.14 Also, the supplementary note defining "betel nut product known as Supari" under 21.06 appears to target more substantially prepared products, and not simply scented whole nuts. In view of the above, it can be deduced that any preparation containing betel nuts should be read as any specially prepared substance which has betel nuts as constituent part in it. In accordance with Rule 1 of the GRI of the HSN, the goods in question appear to be most appropriately classifiable under Customs Tariff Item (CTI) 0802 8090. This classification is predicated on the principle that g....
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....rocessing, including coating with edible colors, menthol, and sweeteners, making it fit for direct consumption as a mouth freshener. This alters its characteristics from raw cardamom. iii. The applicant argues that Flavored and Coated llaichi is a value-added product, classifiable under CTH 2106.90.99, as per Supplementary Note 5(b) to Chapter 21 of the Customs Tariff Act, 1975. It is clarified that this product is distinct from raw cardamom, which falls under heading 0908, and is therefore classified as a miscellaneous edible preparation under Chapter 21. iv. The product, due to its processing and added ingredients, cannot be classified under Chapter 9, which covers raw spices. Instead, it falls under Chapter 21, which includes food preparations not elsewhere specified or included, particularly under CTH 2106.90.99. This classification aligns with CBIC Circular No. 163/19/2021-GST, dated 06.10.2021, which sets an 18% GST rate for such products. 5.17 However, the claims made by the applicant and the ruling sought is devoid of merits and legally untenable on the following grounds: The primary issue under consideration is whether Flavored and Coated llaichi (card....
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....lementary Notes on Cardamom and Explanatory Notes to Chapter 9 provide that "mixtures of spices or preparations containing spices remain classified as such, provided they maintain their essential nature". Here, the Flavored and Coated llaichi continues to retain the primary characteristics of cardamom, despite the additional flavouring. The relevant extract of Chapter 9 Notes is reproduced below: "This Chapter also includes mixtures consisting of plants, parts of plants, seeds or fruit (whole, cut, crushed, ground or powdered) of species falling in different Chapters (e.g., Chapters 7, 9, Il, 12), of a kind used either directly for flavouring beverages or for preparing extracts for the manufacture of beverages, i. if the essential character is given by one or more species of any single one of the headings 09.04 to 09.10 (headings 09.04 to 09.10 as the case may be); ii. if the essential character is given by a mixture of species of two or more of the headings 09.04 to 09.10 (heading 09.10). This Chapter however excludes such mixtures if the essential character is not given by the species mentioned in (i) or by the mixtures referred to in (ii) a....