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2101.10 Extracts, essences and concentrates, of coffee, and preparations with a basis of these extracts, essences or concentrates or with a basis of coffee.

21.08 Edible preparations, not elsewhere specified or included (emphasis supplied)

2. The impugned Order-in-Appeal has noted that heading 21.01 specifically covers coffee products while 21.08 is a residuary entry covering edible preparations. The Commissioner also has noted that 2101.10 specifically covers preparations with a basis of coffee extract and coffee extract is the ingredient, which gave the items their character, and commercial identity. Other ingredients like sucrose, partly skimmed milk powder, and maltodextrine being subsidiary items. The order also went by the fat that both the products are used for preparing coffee. Regarding the appellants claim that the goods would be specifically covered as "preparations consisting of tea or coffee and mil powder, sugar and any other added ingredients mentioned as falling under chapter heading 21.08 in note 9(b)(g) of chapter 21 of the Central Excise tariff, the Commissioner has noted that that note related to preparations consisting of coffee, and not of coffee extract or essence as in the case of present item.

7. We have perused the records and considered the submissions made by both sides. There could be hardly any doubt about the commercial identity of the goods in question. They are coffee. The method of manufacture also makes it clear. The appellant brings the coffee extract from another factory of theirs at Nanjancad and manufactures these items by adding other items to the coffee extract. The other items like milk, sucrose, partly skimmed milk powder, soluble maltodextrine are subsidiary. The scheme of chapter 21 is to specifically cover preparations of coffee extract under heading 21.01 and edible preparations not elsewhere specified or included under heading 21.08. The heading 21.08 does not cease to be a residuary heading merely because a chapter note mentions some of the items covered by that residuary heading. The heading itself states "not elsewhere specified or included. It is well settled that a product is to be classified under a residuary heading only it if is exhaustively shown that no specific entry would cover it. In its judgment in the case of Indian Metals & Ferro Alloys Ltd. v. Collector of Central Excise wherein the Hon'ble Supreme Court held as under: