Custom, Excise & Service Tax Tribunal
Abbott Health Care Pvt. Ltd vs Commissioner Of Customs (Import), ... on 4 December, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/870, 871, 561/12-MUM
[Arising out of order-in-appeal No. No.348 & 349/ MCH/ AC/ICD /2012 dated 02/07/2012 passed by the Commissioner of Customs (Appeals), Mumbai]
For approval and signature:
Honble Mr. P.R. Chandrasekharan, Member(Technical)
Honble Mr Ramesh Nair, Member(Judicial)
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1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Abbott Health Care Pvt. Ltd.,
:
Appellants
VS
Commissioner of Customs (Import), Mumbai
:
Respondent
Appearance
Shri. T. Vishwanathan for the Appellants
Shri. Shri. Ahibaran, Addl Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. P.R. Chandrasekharan, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 4/12/2014
Date of decision: 4/12/2014
ORDER NO.
Per : P.R. Chandrasekharan
1. The appeals are directed against order-in-appeal No. No.348 & 349/MCH/AC/ICD/2012 dated 02/07/2012 passed by the Commissioner of Customs (Appeals), Mumbai.
2. The appellant, M/s.Abbott Health Care Pvt. Ltd., Mumbai, imported products called Pediasure, Ensure, Glucerna, Isomil and Prosure under 59 Bills of Entry during the period April to July 2011 and claimed the benefit of CVD exemption under Notification No.02/2011-CE dated 01/03/2011 {vide Sl.No.8 or 10 (i)} which covers all kinds of food mixes, including instant food mixes and ready to eat packaged food. The department was of the view that the goods under import are not food mixes but food supplements having medicinal qualities containing specific proteins, minerals and vitamins with sustained release of strength. Accordingly, the exemption under Notification was denied and a differential duty demand of Rs.3,18,64,236/- was confirmed along with interest thereon. The appellant preferred an appeal before the lower appellate authority, who dismissed the appeal. Hence, the appellants are before us.
3. The Ld. Counsel for the appellant submits that they are not disputing their duty liability in respect of Glucerna and Isomil but are disputing the duty liability in respect of the other three products. The products under importation are classifiable under heading No.2106 of the Central Excise Tariff Act, which covers food preparations not elsewhere specified or included and the goods have been classified under the residual entry CTH 210690.99. Note 5 to Chapter 21 relating to Heading No.2106 lists out the items which falls under the said heading under clauses a to i to the said note. As per the said note, under clause b, preparations for use, either directly or after processing, (such as cooking, dissolving or boiling in water, milk or other liquids), for human consumption falls under the said heading. The products Pediasure imported by them is a complete and balanced nutritional product designed to meet the nutrient needs of children 2-10 years of age. The said product is also a healthy, between-meals snack, for picky eaters. It also provides nutritional support for children aged 2 to 10 years with chronic conditions. The product consists of hydrolyzed corn starch, sugar, sodium and calcium caseinates, high oleic sunflower oil, fructo-loigosaccharides, soy oil apart from minerals and vitamins. The carbohydrates contained in the product is 43.9%, Protein 12%, Fat 44.1% and the balance is minerals and vitamins. Similarly, in the case of the product called Ensure it consists of carbohydrates 54.3%, Fat 29.2%, Protein 14.8%, FOS 1.7% and the balance vitamins and minerals. It is a complete balanced nutritional product for early recovery from illness and provides all essential nutrients in the diet and can be used as a sole source of nutrition. The product is used by elderly patients. The usage is by mixing the product in water till they are dissolved and consumption thereafter. Thus, the product under importation are food mixes meant for children or elderly persons and therefore, it falls squarely within the scope of the exemption which covers all kinds of food mixes including instant food mixes. He also relies on the decision of this Tribunal in the case of Sankalp Food Products Vs. CCE, Mumbai, reported in 2003 (155) ELT 166 (Tri-Mum) wherein soya protein isolate/textured protein capable of being consumed after mixing with water was held to be a food mix for the purpose of Notification No.5/98-CE dated 02/06/1998. The Ld. Counsel also the relied on the decision in the case of Sonic Biochem Extraction (P) Ltd., Vs. CCE, Indore, reported in 2004 (167) ELT 430 (Tri-Del) wherein textured sola protein was considered as a preparation of the nature of instant food mixes eligible for Notification No.5/99-CE. The Ld. Counsel also relies on the decision in the case of CCE, Ahmedabad Vs. Pioma Industries, reported in 2007 (207) ELT 730 (Tri-Mumbai) wherein a soft drink concentrate was held to be in the nature of instant food mixes entitled to the benefit of Notification No.5/98-CE. In the light of these decisions, the Ld. Counsel pleads for allowing the appeal.
4. The Ld. Addl. Commissioner (AR) appearing for the Revenue strongly disputes the appellants contentions and submits that the goods under importation are meant for specific age categories and as per the literature, the indications for use of the products have been mentioned which clearly show that the products are to be consumed for specific medical conditions and therefore, it cannot be considered as food mixes. He relies on the decision of this Tribunal in the case of Dry Tech Processes (I) Pvt. Ltd., Vs. CCE, Bhopal, reported in 2011 (268) ELE 536 (Tri-Del) wherein it was held that food supplements would not come within the scope of food mixes. In the said case the food supplement consisted of only minerals and vitamins and this Tribunal while considering the interim stay held that the food supplement consisting of minerals and vitamins will not be eligible for the benefit of Notification No.03/2006-CE dated 01/03/2006.
5. We have carefully considered the rival submissions.
5.1 We have perused the literature and also seen the packages of the food products of both Pediasure and Ensure. The Pediasure is an instant food consisting of starch, sugar, oil, etc., with minor quantities of minerals and vitamins. The product Ensure is also a similar product mainly consisting of starch, sugar, protein with minor quantities of vitamins and minerals and this is for consumption by the elderly people, who need essential nutrition in their diet. The product is consumed by mixing them with water. From the product literature available, it is clearly seen that they are food mixes meant for different age group. The notification covers all food mixes including the instant food mixes. The notification does not stipulate that it should be for consumption by all people or by all age groups. The reliance placed by the Revenue on the decision of Dry Tech Processors India P. Ltd., (cited supra) is not applicable to the facts of the case because in that case the products consisted of only minerals and vitamins. In the present case minerals and vitamins are in minuscule quantity and bulk of the constituents are carbohydrates, protein, sugar, etc. Therefore, the facts involved in the present case are different and distinguishable from the Dry Tech Processes (I) Pvt. Ltd. case. In the case relied upon by the appellants, namely, Sankalp Food Products, Sonic Biochem Extraction (P) Ltd., (supra), this Tribunal has given a liberal interpretation to the term food mixes and held that protein isolate and textured soya, etc. would come within the scope of food mixes. Similar in the case of Pioma Industries, it was held that soft drink concentrate would come within the scope of food mixes.
6. In view of above, we are of the considered view that product imported by the appellant falls within the category of food mixes and the appellant would be eligible for the benefit of Sr. 8 of in the table of Notification No.02/2011-CE dated 01/03/2011 in respect of CVD. Thus, appeals are allowed with consequential relief, if any.
(Dictated in Court) Ramesh Nair Member (Judicial) P.R. Chandrasekharan Member (Technical) sk 7