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6. According to Learned Counsel for the appellant, the impugned goods are intended for oral ingestion by patients suffering from kidney ailments and the capsule, made of hypromelose gellam gum acid, and containing streptococcus thermophilus, lactobacillus and acidophilusbifidobacterium longum (all being probiotic), is also filled with prebiotic viz., inulin and xylo-oligosaccharides with magnesium stearate as emulsifier rendering it to be, essentially, a mixture of probiotics. He contended that the evidence offered by them, in the form of certification by nephrologists, of clinical studies and of test reports from patients using the product, make it abundantly clear that C/86262/2020 these are not food supplements.

9. Likewise, the reiteration of the adjunct evidence, relied upon in the impugned order, by Learned Authorized Representative serve only to divert attention from the essence of classification laid out in, and universally accepted as, the General Rules for the Interpretation of the Schedule in Customs Tariff Act, 1975. Nor are we concerned with the use to which the product is put, or intended by, its consumers. It is contended by him that from 'probiotics' as well as tariff item 3002 90 30 of First Schedule to Customs Tariff Act, 1975 in the notification, there can be no doubt that 'probiotics' would not be classifiable as 'other edible food preparations' but the claim of appellant would have some traction if that was the description in the impugned bills of entry; he postulated that, in the event of resort to rule 3 of General Rules for the Interpretation of this Schedule in Customs Tariff Act, 1975, the adjudicated classification would prevail. He drew attention to Explanatory Notes for chapter 21 which not only enumerates certain descriptions C/86262/2020 for inclusion but is also amenable to a generalization of the intended coverage that extends to the impugned goods. He placed reliance on the decision of the Appellate Authority for Advance Ruling under GST, West Bengal in Re: Eskag Pharma Pvt Ltd [2019 (27) GSTL 749 (App.A.A.R.-GST)]; that, however, is not binding on us. According to him, the impugned goods are not 'probiotics' intended for use by the pharmaceutical industry which the claimed classification covers but finished product containing 'probiotics' among other ingredients.

12. We find that the task before us is straightforward. The concessional rate of duties of customs, extended by notification no. 50/2017-Cus dated 30th June 2017, is available to imported 'probiotics' corresponding to tariff item specified therein; 'probiotics' that are 'cultures of micro-organisms (excluding yeast)', corresponding to heading 3002 of First Schedule to Customs Tariff Act, 1975, are, doubtlessly, eligible to the benefit thereof which, being the default C/86262/2020 classification and as set out by the Hon'ble Supreme Court in re Hindustan Ferodo Ltd and in re HPL Chemicals Limited, may be controverted only by proposing alternative classification established as adhering to the General Rules for Interpretation of Schedule in Customs Tariff Act, 1975. Of itself, mere enumeration in the exemption notification does not render all 'probiotics', or compounds containing probiotics, to be classifiable within heading 3002 of First Schedule to Customs Tariff Act, 1975; that is abundantly clear from the decision of the Hon'ble Supreme Court in Eskayef Limited v. Collector of Central Excise [1990 SCC (4) 680].

The probiotic powders at issue are not classified under heading 3002, HTSUS as "cultures of micro-organisms (excluding yeasts) and similar products" because Chapter Note 1(a) to Chapter 30, HTSUS, indicates that the chapter "does not cover... foods or beverages..., other than nutritional preparations for intravenous administration." Although the probiotic powders of food preparations that contain cultures of micro-organisms, they are not designed for intravenous administration. Therefore, because the subject probiotic products are food preparations for oral ingestion, they are specifically excluded from classification by virtue of Note 1(a) to Chapter 30, HTSUS....'