2016(10)LCX0157

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri Ramesh Nair, Member (J) and C.J. Mathew, Member (T)

Quest International India Ltd.

Versus

COMMR. OF CUS. (IMPORT), MUMBAI

Final Order No. A/93549/2016-WZB/CB and Misc. Order No. M/93550/2016-

Cases Quoted -

Giavudan India Pvt. Ltd. v. Commissioner - 2009(12)LCX0321 Eq 2010 (261) ELT 0975 (Tribunal) - Referred [Para 4]

Advocated By -

Shri Anil Balani, Advocate, for the Appellant.
Shri M.K. Mall, Assistant Commissioner (AR), for the Respondent.

[Order per : Ramesh Nair, Member (J)]. -

The appellant imported whisky flavouring and butter flavouring and filed Bill of Entry No. 489721, dated 30-8-2001 classifying the product under Customs Tariff Heading 3302 10 90.

2. The department disputed the classification of butter flavouring and contended that as per Chapter Note 2 of Chapter 33 the expression 'odoriferous substances' under Heading 3302 refers only to the substance of Heading 3301 to odoriferous constituents isolated from those substances or synthetic aromatics. The items covered under Heading 3301 are of plant origin and hence the goods to be classified under Heading 3302 should also be of plant or leaves. Since the origin of butter flavouring was not plant origin, the goods were classified under CTH 2106 90 60. The adjudicating authority while classifying the goods namely, butter flavouring relied upon the test report received from Dy. Chief Chemist Lab under Test Report No. 27/Gr.2B-II, dated 2-9-2004 according to which

"the sample is anhydrous milk fat (anhydrous butter oil) in the form of oily liquid. Total fatty matter (TFM) - 99.78%, Moisture 0.12%"

3. Further opinion was sought from Dy. Chief Chemist Lab to confirm the classification. The Dy. Chief Chemist Lab opined that classification of butter flavouring under Chapter 33 is ruled out. Accordingly, the adjudicating authority has classified the butter flavouring under CTH 2106 90 60. Aggrieved by the Order-in-Original No. S/4-UP-1/2004 Gr.2B-II, dated 12-10-2004 an appeal'was filed by the appellant, which the learned Commissioner (Appeals) rejected, holding that the classification under Heading 2106 90 60 as done by the lower authority is confirmed. Therefore, aggrieved by the impugned order, the appellant filed this appeal.

4. Shri Anil Balani, learned Counsel for the appellant submits that the product mainly consists of synthetic chemicals like proponic acid and chemicals like lactones which gives butter like odour. The test report also states that the sample is in the form of colourless liquid having butter like flavour. The report further states that the product is a preparation consisting of mixtures of chemicals. Therefore, it is correctly classifiable under Chapter 33. He further submits that in a similar matter in the case of Giavudan India Pvt. Ltd. v. Commissioner of Customs, Bangalore reported in 2009(12)LCX0321 Eq 2010 (261) ELT 0975 (Tri.-Bang.) classification of similar product was confirmed under CTH 3302.


5. Shri M.K. Mall, learned Asstt. Commissioner (AR) appearing on behalf of Revenue reiterates the findings of the impugned order.

6. We have carefully considered the submissions made by both the sides and perused the records. We find that the classification of goods namely -butter flavouring was decided by the lower authorities, on the basis of test report and classification finalized under Chapter 21 against the claim of the appellant under Chapter 33. As per the test report it was opined that the product contains the butter flavour which is not under dispute. As per Chapter Note (2) of Chapter 33 the product should be of plant origin. In the present case, the ingredients i.e. butter fat is not a plant origin. Therefore, in our considered view the lower authorities have correctly classified the product under Chapter 21. The relevant finding of the learned Commissioner (Appeals) is reproduced below.


"I have gone through the records of the case. The goods imported by the appellants i.e. Butter flavouring was sought to be classified under heading 3302 as a flavouring substance. The imported goods was also subjected to testing in the DYCC laboratory of the Customs House. The test report is very specific and rules out classification under chapter 33. Admittedly the appellants have not challenged the test report at the time of classification by the lower authority nor have they sought re-testing of the said goods. Accordingly I do not find any reason to interfere with the order of the lower authority. The classification under heading 2106 90 60 as done by the lower authority is confirmed and the appeal is rejected."


7. From the above findings as well as on perusal of the original order, we find that except the test report no material was produced by the appellant to counter the claim of the Revenue. As regards the judgment relied upon by the learned Counsel, on going through the judgment, we find that the facts of the said judgment as well as the product is different from the product of the appellant. Therefore, the ratio of the judgment is not applicable. As per our above discussion and concurrent findings of both the lower authorities, we hold that the product is correctly classified under CTH 2106 and not 3302.

8. The impugned order is upheld and the appeal is dismissed.


9. The Misc. Application for name change i.e. from "M/s. Quest International India Ltd." to M/s. Givaudan Flavours (India) Pvt. Ltd." is allowed.
(Pronounced in Court on 31-10-2016)

Equivalent 2017 (347) ELT 0325 (Tri. - Mumbai)