2016(03)LCX0058

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. I]

S/Shri M.V. Ravindran, Member (J) and CJ. Mathew, Member (T)

AGRO TECH FOODS LTD.

Versus

COMMISSIONER OF CUS., JNCH, NHAVA SHEVA

Final Order No. A/87031/2016-WZB/CB, dated 29-3-2016 in Appeal No. C/487/2005-Mum

Advocated By -

Shri J.C. Patel, Advocate, for the Appellant.
Shri C. Singh, Asst. Commissioner (AR), for the Respondent.

[Order per : M.V. Ravindran, Member (J)]. -

This appeal is directed against Order-in-Appeal No. 18/2005(JNCH), dated 15-2-2005.


2. The relevant facts that arise for consideration are appellant herein had imported "Act-II Microwave Popcorn" (imported goods) vide bill of entry No. 625018, dated 25-8-2004 and claimed classification under Customs Tariff Heading No. 2005 80 00. Lower authorities were of the view that this heading may not be applicable which is for only sweet corn while the imported goods are of Popcorn a variety which would fall under CTH 2106 90 99 and held so.

3. Learned counsel would take us through the entire records including the Order-in-Original & Order-in-Appeal.


4. He would submit that the product imported by the appellant would merit classification under 2008 and not 2005, though it was claimed before the lower authorities. He would submit that the imported goods are other attribute parts of the client. He would draw our attention to the Chapter Heading No. 2008. He would also draw our attention to the HSN for. He would submit that imported goods are ready to use Popcorn mixed with butter and needs only M.i-crowaved and then for direct consumption. He would submit that identical issue came at before the US Customs ruling court and it was held that the imported goods are classifiable under Chapter Heading No. 2008 as other edible parts of plants otherwise prepared or preserved.

5. Learned departmental representative on the other hand would draw our attention to the HSN Explanatory note of Chapter 21 and submit that the imported goods are preparation of butter, other fats or oils, and hence correctly classifiable under Chapter Heading No. 2106 as food preparations not elsewhere specified or included.


6. We have considered the submissions made at length by both sides and perused the records.

7. The dispute in the case in hand is regarding the classification of the imported goods. Revenue is claiming classification under Chapter Heading No. 2106, vide the assessee is claiming the classification under Chapter Heading No. 2008, though before the lower authorities in the bill of entry they had claimed classification under Chapter Heading No. 2005.


8. In order to settle the classification dispute, it is required that the competing Chapter Headings needs to be reproduced.
2008 Fruit, nuts and other edible parts of plants,
othenvise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included

2008 99 99 - Other kg. 30% ~
2106 Food preparation not elsewhere specified or
included
2106 90 99 - Other kg. 150% -

It can be seen from above reproduced Chapter Heading Numbers that the Revenue's claim of classification of the product under 2106 seems to be without any basis as the said Chapter Heading 2106 talks about food preparation not elsewhere specified or included. To our mind the said entry of 2106 is a general residual entry which would cover the classification of the product if it cannot be classified anywhere else. We find that the imported goods are prepared or preserved or used for making of Popcorn. It cannot be disputed that the goods are edible part of the plant. In our view, if it has to be accepted as edible part of the plant, the correct classification would be under Chapter Heading No. 2008. We find that even the HSM Explanatory Notes of Chapter 21 as well as the Customs Tariff in respect of Chapter Heading No. 21, talks primarily about the products which are generally preparation not elsewhere specified or included the Chapter Heading No. 2106, in our view this would apply in respect of Namkins or other items, which are not classifiable under any other heading. We also find that evidence from records, that importer appellant is a manufacturer of very same product in India and classified the same on Central Excise Tariff under Heading No. 2008 11 90 and discharging appropriate rate of duty, which has been accepted by the Central Excise Department. If the Central Excise Department who are accepting the classification of said product under 20.08 and also accepting the duty payment, of the same product, we do not find any reason not to extend the said classification under Customs Tariff to the imported goods. In our considered view, it has to be held that the impugned order is unsustainable and the classification of the imported goods would fall under Chapter Heading No. 2008 1190.



9. In view of the foregoing, we hold that the impugned order is liable to
be set aside and we do so and hold that the correct classification of imported
goods would fall under Chapter Heading No. 2008 11 90.

10. The appeal is allowed.
(Dictated in Court)

Equivalent 2016 (337) ELT 0436 (Tri. - Mumbai)