2014(12)LCX0249

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

S/Shri P.R. Chandrasekharan, Member (T) and Ramesh Nair, Member (J)

Abbott Healthcare Pvt. Ltd.

Versus

COMMR. OF CUS. (IMPORT), NCH, MUMBAI

Final Order No. A/1775/2014-WZB/C-KCSTB) and Misc. Order No. M/2098/2014-

Advocated By -

Shri T. Vishwanathan, Advocate, for the Appellant.
Shri Ahibaran, Addl. Commissioner (AR), for the Respondent.

[Order per : P.R. Chandrasekharan, Member (T)]. -

The appeal is directed against Order-in-Appeal No. 163(CFS (Mulund)(I)/2005 (JNCH), dated 25-1 1-2005 passed by the Commissioner of Customs (Appeals), Jawaharlal Nehru Customs House, Sheva, Mumbai-II. The issue involved in the appeal is classification of the product "Pediasure" (Nutritional diet for Children), imported by the appellant, M/s. Abbott Healthcare Pvt. Ltd. The appellant sought classification under CTH 1901 as 'preparation for infant use'. The department of the view that since product is used by children in the age group 2-7 years, it cannot be classified as for infant use and confirmed the duty demand accordingly. Hence the appeal before us.


2. The Id. Counsel for the appellant submits that they are withdrawing their claim as 'product for infant use'. However, they have filed an additional ground seeking re-classification the product under CTH 21.06 as "food preparation not elsewhere specified or included". It is his contention that the composition of product does not satisfy requirement of heading description under CTH 1901. CTH 1901 covers only "Preparations of Malt extract; food preparations of flour, groats, meal, starch or malt extract, not containing cocoa or containing less than 40% by weight of cocoa calculated on a totally defatted basis, not elsewhere specified or included. Food preparations of goods of Headings 04.01 to 04.04, not containing cocoa or containing less than 5% by weight of cocoa calculated on totally defatted basis, not elsewhere specified or included'. The composition of the products consists of 35.01% sugar, 50.21% carbohydrate and various other ingredients. Therefore there is no single material, which predominates over the others and therefore it cannot be classified as a "food preparation falling under CTH 1901". However, he fairly submits that this point was not agitated before the Id. lower authority. Accordingly he pleads for remand of the case back to the adjudicating authority for fresh consideration.

3. Ld. Addl. Commissioner (AR) appearing for the Revenue reiterates the findings of the ld. lower authority.


4. We have carefully considered the submissions made by both the sides.

5. From the composition of the product, it is seen that the main ingredients in terms of weight are sugar 35.01%; carbohydrates 50.21% and the balance other ingredients and various proteins. Therefore there is merit in the contention of the appellant that product cannot fall under CTH 1901 at all and classification under CTH 2106 as not elsewhere specified or included appears to be merited. We further notice that in respect of the import of the same product subsequently, the department has classified the goods under CTH 21.06. Since this point has not been considered by the lower authorities, the matter should go back to original authority for fresh consideration. Therefore, we remand the matter back to the adjudicating authority for de novo consideration to consider the specific claim of the appellant that appropriate classification of the impugned goods is CTH 2106. Thus the appeal is allowed by the way of remand.
(Dictated in Court)

Equivalent 2016 (339) ELT 0450 (Tri. - Mumbai)