By TIOL News Service

MUMBAI, MAR 14, 2015: THE appellant imported products called "Pediasure, Ensure, Glucerna, Isomil & Prosure" and claimed the benefit of CVD exemption under Notification No. 02/2011-CE dated 01/03/2011 {vide Sl. No. 8 or 10 (i)} which covers "all kinds of food mixes, including instant food mixes" and "ready to eat packaged food", heading 2106.

The department took a view that the goods are not "food mixes" but "food supplements" having medicinal qualities containing "specific proteins, minerals and vitamins with sustained release of strength" and, therefore, denied the exemption and confirmed a differential duty demand of Rs.3.19crores.

Having unsuccessfully contested their claim before the lower authorities, before the CESTAT the appellant submitted that they are not disputing their duty liability in respect of "Glucerna and Isomil" but are disputing the duty liability in respect of the other three products.

The CESTAT had heard the appeal on 4.12.2014 and concluded thus -

"5.1 We have perused the literature and also seen the packages of the food products of both "Pediasure" and "Ensure". The "Pediasure" is an instant food consisting of starch, sugar, oil, etc., with minor quantities of minerals and vitamins. The product "Ensure" is also a similar product mainly consisting of starch, sugar, protein with minor quantities of vitamins and minerals and this is for consumption by the elderly people, who need essential nutrition in their diet. The product is consumed by mixing them with water. From the product literature available, it is clearly seen that they are food mixes meant for different age group. The notification covers "all food mixes including the instant food mixes". The notification does not stipulate that it should be for consumption by all people or by all age groups….

6. In view of above, we are of the considered view that product imported by the appellant falls within the category of food mixes and the appellant would be eligible for the benefit of Sr. 8 of in the table of Notification No. 02/2011-CE dated 01/03/2011 in respect of CVD. Thus, appeals are allowed with consequential relief, if any."

While reporting this order - 2015-TIOL-170-CESTAT-MUM last month we had quipped - "Now for the duty liability in respect of Prosure, Glucerna, Isomil…and also see 2006-TIOL-718-CESTAT-MUM."

Incidentally, the appellant filed a ROM application before the Bench and pointed out that a 'minor' error had crept in the aforementioned order passed by the Bench on 04/12/2014.

Inasmuch as whereas the appellant had imported three products which bore the brand names 'Pediasure, Ensure and Prosure', while extending the benefit of notification no. 02/11-CE, in para 5.1 of the order, the product 'Prosure' has been inadvertently excluded, submitted the appellant. They have, therefore, requested the Bench to include the product 'Prosure'.

The application was heard recently and the Bench agreed that an "inadvertent"error has crept in the final order.

And so, the CESTAT passed the following order -

"4. In para 5.1 for the sentence " we have perused the literature and also seen the packages of the food products of both "Pediasure"and "Ensure”, the sentence "we have perused the literature and also seen the packages of the food products of "Pediasure”, "Ensure"and "Prosure"shall be substituted."

The ROM application was allowed.

In passing : Hopefully, this should be the end…or the beginning of another? And for the Revenue … bliss. As is said, for every problem, there is one solution that is simple, neat, and wrong. [Courtesy DDT 2491.]

(See 2015-TIOL-477-CESTAT-MUM)