Custom, Excise & Service Tax Tribunal
Quest International India Ltd vs Mumbai on 1 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/563/2005
APPLICATION NO: C/MA(Ors)-92072/2016
[Arising out of Order-in-Appeal No: 113/2005 MCH dated 25/02/2005 passed by the Commissioner of Customs (Appeals), Mumbai I.]
For approval and signature:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
Quest International India Ltd
Appellant
Versus
Commissioner of Customs (Import)
Mumbai
Respondent
Appearance:
Shri Anil Balani, Advocate for the appellant Shri M.K. Mall, Asstt. Commissioner (AR) for the respondent CORAM:
Honble Shri Ramesh Nair, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 01/07/2016 Date of decision: 31/10/2016 ORDER NO: ____________________________ Per: Ramesh Nair:
The appellant imported whisky flavouring and butter flavouring and filed Bill of Entry No. 489721 dated 30/08/2001 classifying the product under Customs Tariff Heading 3302 1090.
2. The department disputed the classification of butter flavouring and contended that as per Chapter Note 2 of Chapter 33 the expression odoriferous substances under heading 3302 refers only to the substance of heading 3301 to odoriferous constituents isolated from those substances or synthetic aromatics. The items covered under Heading 3301 are of plant origin and hence the goods to be classified under heading 3302 should also be of plant or leaves. Since the origin of butter flavouring was not plant origin, the goods were classified under CTH 2106 9060. The adjudicating authority while classifying the goods namely, butter flavouring relied upon the test report received from Dy. Chief Chemist Lab under test report No. 27/Gr.2B-II dated 02/09/2004 according to which the sample is anhydrous milk fat (anhydrous butter oil) in the form of oily liquid. Total fatty matter (TFM) 99.78% Moisture 0.12%
3. Further opinion was sought from Dy. Chief Chemist Lab to confirm the classification. The Dy. Chief Chemist Lab opined that classification of butter flavouring under Chapter 33 is ruled out. Accordingly, the adjudicating authority has classified the butter flavouring under CTH 2106 9060. Aggrieved by the order-in-original No. S/4-UP-1/2004 Gr2-BII dated 12/10/2004 an appeal was filed by the appellant, which the learned Commissioner (Appeals) rejected, holding that the classification under Heading 2106 9060 as done by the lower authority is confirmed. Therefore, aggrieved by the impugned order, the appellant filed this appeal.
4. Shri Anil Balani, Learned Counsel for the appellant submits that the product mainly consists of synthetic chemicals like proponic acid and chemicals like lactones which gives butter like odour. The test report also states that the sample is in the form of colourless liquid having butter like flavor. The report further states that the product is a preparation consisting of mixtures of chemicals. Therefore, it is correctly classifiable under Chapter 33. He further submits that in a similar mater in the case of Givaudan India Pvt Ltd v. Commissioner of Customs, Bangalore reported in 2010 (2610 ELT 975 (Tri.Bang.) classification of similar product was confirmed under CTH 3302.
5. Shri M.K. Mall, learned Asstt. Commissioner (AR) appearing on behalf of Revenue reiterates the findings of the impugned order.
6. We have carefully considered the submissions made by both the sides and perused the records. We find that the classification of goods namely - butter flavouring was decided by the lower authorities, on the basis of test report and classification finalized under Chapter 26 against the claim of the appellant under Chapter 33. As per the test report it was opined that the product contains the butter flavor which is not under dispute. As per Chapter Note (2) of Chapter 33 the product should be of plant origin. In the present case, the ingredients i.e. butter fat is not a plant origin. Therefore, in our considered view the lower authorities have correctly classified the product under Chapter 26. The relevant finding of the learned Commissioner (Appeals) is reproduced below.
I have gone through the records of the case. The goods imported by the appellants i.e. Butter flavouring was sought to be classified under heading 3302 as a flavouring substance. The imported goods was also subjected to testing in the DYCC laboratory of the Custom House. The test report is very specific and rules out classification under chapter 33. Admittedly the appellants have not challenged the test report at the time of classification by the lower authority nor have they sought re-testing of the said goods. Accordingly I do not find any reason to interfere with the order of the lower authority. The classification under heading 21069060 as done by the lower authority is confirmed and the appeal is rejected.
7. From the above findings as well as on perusal of the original order we find that except the test report no material was produced by the appellant to counter the claim of the Revenue. As regards the judgment relied upon by the Learned Counsel, on going through the judgment, we find that the facts of the said judgment as well as the product is different from the product of the appellant. Therefore, the ratio of the judgment is not applicable. As per our above discussion and concurrent findings of both the lower authorities, we hold that the product is correctly classified under CTH 2106 and not 3302.
8. The impugned order is upheld and the appeal is dismissed.
9. The Misc. Application for name change i.e. from M/s. Quest International India Ltd. to M/s. Givaudan Flavours (India) Pvt. Ltd. is allowed.
(Pronounced in Court on 31/10/2016) (C J Mathew) Member (Technical) (Ramesh Nair) Member (Judicial) */as 5 5