Customs, Excise and Gold Tribunal - Mumbai
Sankalp Food Products vs Commissioner Of Central Excise on 1 April, 2003
Equivalent citations: 2003(155)ELT166(TRI-MUMBAI)
ORDER C. Satapathy, Member (T)
1. Shri Rajesh Chander Kumar, learned Advocate for the appellants states as follows :-
The appellants are engaged in manufacture of "Edible Preparations" with due Central Excise Registration. The present proceedings relate to their products - "Ten-0-Lip and Ten-0-Tube" falling under Chapter Heading 2108.99 of the Schedule to the Central Excise Tariff Act, 1985 as a category of Soya Milk Powder, which are predominantly high quality foods, providing nutrition support in all types of ailments and which can be used to replace full meals. The issue is regarding the claim made by the appellant in their Classification Declaration No. 7/98-99, dated 22-6-98 for concessional rate of duty at 8% (instead of the tariff rate of 18%) under Notification No. 5/98, dated 2-6-98 in respect of the products in question. In the said Classification Declaration, the appellants have described the products as "Soya Protein Isolate/Soya Textured Protein, whether or not containing other goods/ingredients but not containing Cocoa" falling under Chapter Heading 2108.99 and characterised them as Miscellaneous Edible Preparations in the nature of instant food mixes for consumption after processing (such as cooking, dissolving or boiling in water, milk etc.)" as in Sl. No. 7 of Notification No. 5/98, dated 2-6-98, providing for concessional rate of excise duty at 8%, further stating that they are not availing Modvat credit on the inputs, which is the condition laid down in the Notification for availing the concession.
2. He further states that the impugned goods is made into paste and used by cancer patients who cannot take solid food and hence, appellants are eligible for exemption under Serial No. 7 to the table annexed to Notification No. 5/98, dated 2-6-98. He also refers to Para 6 of the Apex Court decision in the case of Welcome Hotel and Ors. v. State of Andhra Pradesh - (1983) 4 Supreme Court Cases 575 which reads as under :-
"Further the expression 'food' has generally been understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth, work or repair and for the maintenance of the vital process. What human beings consume is styled as food and what animals consume is described as animal feed. This distinction has to be borne in mind. Expression 'food-stuffs' is made of two expressions, 'food' plus 'stuff In other words, the stuff which is used as food would be food stuff. Therefore, food-stuff is that which is taken into the system to maintain life and growth and to supply waste of tissue. If the raw foodstuff with a view to making it consumable by human being undergoes a change of its conditions by the process of cooking, the derivative is none the less food-stuff? As the Chinese by an accidental fire in a hut where there were pigs learnt the advantage of consuming cooked food in place of raw food, the submission of Mr. Kanta Rao would make us march backward by centuries and be a disgrace to modern culinary art. And 'food crop' is another expression defined in the 1955-Act. Therefore, the expression 'food-stuff as used in the 1955-Act comprehends cooked food."
3. Shri Ishwar Singh, learned JDR supports the Order of the lower authorities and states that the appellants have changed the name of the product again and again and they had earlier claimed exemption under Notification No. 70/95 which was not allowed to them.
4. After hearing rival submissions and perusal of case records, we find that the entry under Serial No. 7 of the table annexed to Notification 5/98 reads as, "Preparations in the nature of instant food mixes for consumption after processing (such as cooking, dissolving or boiling in water, milk, etc.)". It is seen that there is no dispute about the classification of the products under Heading 21.08 referred to under the said Sl. No. 7. The description under Sl. No. 7 is very wide and includes preparations in the nature of instant food mixes and it also extends coverage to food mixes for consumption after processing such as cooking, dissolving or boiling in water, milk, etc. The impugned product has been denied exemption holding it as protein concentrates. There is no exclusion to protein concentrate in the said Serial No. 7 and so long as the impugned food is capable of being consumed after mixing it with water as claimed by the appellants, we find no reason why the same cannot be covered under the said entry which is very wide in its scope. Accordingly, we set aside the impugned orders passed by the lower authorities and allow the appellants exemption under the said Notification No. 5/98, dated 2-6-98.
5. The appeal is allowed.