P.R. Chandrasekharan, J. - (1.) THERE are seven appeals arising out of Orders -in -Original Nos. (i) 15 -16/SLM(15 -16)COMMR/RGD/08 -09, dated 29 -8 -2008; (ii) 22 -23/SR(22 -23)COMMR/RGD/09 -10, dated 30 -3 -2010; and (iii) 10 -12/MAK(10 -12)COMMR/RGD/13 -14, dated 31 -5 -2013 passed by the Commissioner of Central Excise, Customs & Service Tax, Raigad Commissionerate. In all these appeals, a common issue is involved and, therefore, they are being taken up together for consideration and disposal. The appellant, M/s. Raptakos Brett & Co. Ltd., Raigad are manufacturers of 'Threptin' and 'Prorich' diskettes. Threptin' diskettes are described as high calorie protein supplement fortified with B Vitamins. 'Prorich' diskettes are described as whey protein enriched. The department sought to classify these products under CETH 2106 10 00 as "protein concentrates and textured protein substances". The appellant sought to classify the same as falling under 2106 90 99 as 'food preparations not elsewhere specified or included' and claimed the benefit of concessional excise duty under Notification No. , dated 1 -3 -2006 as ready to eat packaged food. Accordingly, show cause notices were issued to the appellant demanding differential duty vide notices dated 5 -11 -2008 for the period March, 2006 to September, 2007; dated 16 -4 -2010 for the period April, 2009 to December, 2009; and dated 16 -12 -2010 for the period January, 2010 to June, 2010. These notices were adjudicated vide the impugned orders and the product was classified under CETH 2106 10 00 as "protein concentrates and textured protein substances" and the duty demands were confirmed along with interest thereon and also by imposing penalties. Aggrieved of the same, the appellant is before us.
(2.) THE learned counsel for the appellant submits that as per the manufacturing process undertaken, the goods are manufactured from casein, extruded rice, Bengal gram, soylecithin, malt extract, edible hydrogenated vegetable fat, sugar and water; these products are mixed together and the wet material formed is granulated. Wet granules are dried in a tray drier at 80 ºC for 3 1/2 hours. Permitted natural colour and artificial flavour are used as flavouring materials. The granules after flavouring are compressed into diskettes in a pressing machine. The diskettes so produced are baked in an oven for one hour and then packed. In the case of 'Prorich', the manufacturing process is similar except that whey protein concentrates are also added at the time of mixing of the goods. The Threptin' diskettes so manufactured contains 1.50 gms. of protein, 2.4 gms. Carbohydrate, 0.7 gms. of fat and the balance, other substances, in a diskette weighing 5 gms. approximately. Thus, the protein content is only 30%. In the case of 'Prorich' diskettes, which weighs 5 gms. protein content is 1.5 gms, carbohydrates account for 2.9 gms, fat account for 0.2 gms. and other ingredients, the balance. Thus, in the case of 'Prorich' diskettes also the protein content is only 30%. Therefore, it cannot be said that the product manufactured by them is a protein concentrate as protein accounts for only of 30% of the weight of the product and carbohydrates is predominant. 2.1 The appellant also obtained expert opinions from two experts; Professor S.S. Lele, Professor of Biochemical Engineering, Food Engineering & Technology Department of the Institute of Chemical Technology, University of Mumbai. Vide certificate dated 4 -5 August, 2008, after analyzing the samples of the product and going through the extensive literature available on the subject, Prof. Lele has concluded that 'Threptin' and 'Prorich' cannot be classified as protein concentrates or textured protein. As per the scientific literature available on the subject on which he has relied upon, it has been stated that protein concentrate should have at least 70% protein by weight. Similarly, he has concluded that the product cannot be considered as textured protein inasmuch as the product has been formulated by simply mixing/blending and the procedure does not involve any texture development that is usually carried out to stimulate meat. Similarly, Professor Dr. Jagadish Sarvotham Pai, who is a retired Professor and Head of the Department of Food & Fermentation Technology, University Institute of Chemical Technology, Mumbai, in his expert opinion dated 25 -7 -2008 has stated that the protein content of concentrate is normally over 65% and almost up to 90%. Further, protein concentrate and textured protein are always used in preparing food materials and never consumed as such. Since 'Threptin' and 'Prorich' diskettes are consumed as such and the percentage of protein is only 30%, he has opined that they do not qualify to be called as "protein concentrates or textured protein". 2.2 The learned counsel has also relied on technical literature, namely, 'Soy Protein and Human Nutrition', published by Academic Press, 1979, wherein it is stated that the term concentrate applies to those products which contain more than 70% protein. Similarly, in the 'Encyclopedia of Food Technology' published by The AVI Publishing Company Inc., it is stated that soyabean protein products containing a minimum of 70% of the protein are termed as "protein concentrates". As regards textured protein products, the encyclopedia says that texture may be imparted by utilising the physical and chemical properties of the vegetable protein or developing texture by processes such as "wet spinning" and "extrusion techniques". In the present case, the appellant does not adopt any of these processes and, therefore, the product cannot be considered as textured protein products. 2.3 The learned counsel further submits that even as per the HSN Explanatory Notes, "protein concentrates are obtained by elimination of certain constituents of defatted soyabean flour used for protein enrichment of food preparations; soyabean flour and other protein substances textured; however, the heading excludes non -textured defatted soyabean flour whether or not fit for human consumption and protein isolates". From the manufacturing processes undertaken by the appellant, it can be seen that, they have been mixing various products as mentioned above and they have not undertaken elimination of any constituents of defatted soyabean flour and therefore, even as per the HSN Explanatory Notes, the products manufactured by them do not satisfy the definition of protein concentrates or textured protein substances. In spite of these submissions made by the appellant, the adjudicating authority has not considered the submissions nor has he rebutted the expert opinion by adducing opinions of other experts on the subject matter. The adjudicating authority has classified the product on the basis of the information available on the labels of the impugned products and came to the conclusion that the product predominantly contains protein as a major constituent and are used as protein supplements and, therefore, the product has to be classified as a protein concentrate. The adjudicating authority has concluded that the heading providing a specific description has to be preferred over the heading which gives a general description and, therefore, following these principles, the product manufactured by the appellant would merit classification under Heading 2106 10 00. The adjudicating authority has also held that to become a protein concentrate the tariff does not lay down any percentage of protein and, therefore a product with a protein content of 30% would also qualify as a protein concentrate. However, there is no scientific or technical basis for arriving at these conclusions. 2.4 In view of the above the learned counsel pleads that the impugned orders are not sustainable in law and accordingly merits to be set aside. The learned Additional Commissioner (AR) appearing for the Revenue, reiterates the findings of the lower authority. He submits that the goods have been marketed as protein supplements and, therefore, merits classification as a 'protein concentrate'. It is also his contention that the essential character of the product emerges from the high protein content and, therefore, the products, even if classified considering the essential character, would merit classification as a protein concentrate and not as other edible preparations. Accordingly, he pleads for upholding the impugned order.
(3.) WE have carefully considered the submissions made by both the sides.;