By TIOL News Service

MUMBAI, APRIL 26, 2016: THIS is an appeal filed by the importer in the year 2005.

The facts are that the appellant imported "Act II Microwave Popcorn" under bill of entry dated 25.08.2004 and claimed classification under Customs Tariff Heading No. 20058000. Lower authorities were of the view that this Heading may not be appropriate as the same is applicable only for sweet corn while the imported goods are a variety of Popcorn which would fall under CTH 2106 90 99 and held so.

The appellant is before the CESTAT and submits that the correct classification would be under 2008 and not 2005 although it was claimed thus before the lower authorities. It is further submitted that imported goods are ready to use Popcorn mixed with butter and needs to be only Micro waved and consumed directly. Moreover, identical issue had come before the US Customs ruling court and it was held that the goods are classifiable under Chapter Heading No. 2008.

The AR adverted to the HSN Explanatory note of Chapter 21 and submitted that the imported goods are correctly classifiable under Chapter Heading no. 2106 as food preparations not elsewhere specified or included.

The entries are –

2008 Fruits, nuts and other edible parts of plants, otherwise prepared or preserved whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included

2088 99 99 ---- Other Kg. 30%

2106 Food preparation not elsewhere specified or included

2106 90 99 ----- Other Kg. 150%

The Bench referred to the competing entries and observed –

"…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 is 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 HSN 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 else were specified or included the Chapter Heading No. 2106, in our view this would apply in respect of Namkeens 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. 20081190 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…."

Holding that the imported goods are correctly classifiable under Chapter Heading No. 20081190, the impugned order was set aside and the appeal was allowed.

(See 2016-TIOL-985-CESTAT-MUM)