Case Law Details
In re BASF private limited (CAAR Mumbai)
In the case “In re BASF Private Limited,” CAAR Mumbai classified four vitamin premix products—LUTA.E 50, LUTAVIT A/D3 1000/200 PLUS, LUTAVIT A 1000 PLUS, and LUTAVIT B2 SG 80—under Customs Tariff Heading (CTH) 2309. These premixes, containing vitamins and carriers like silica and gelatin, are specifically formulated for animal feed and are unfit for human consumption. The ruling distinguished these products from those in the case of M/s Sonam International, where the goods were found to be suitable for human consumption. The decision emphasized that the products’ active ingredients and carriers allow for homogeneous mixing in animal feed, as per their packaging and technical details. The ruling also considered relevant case laws, including the Supreme Court’s decisions in Atul Glass Industries and Wockhardt Life Sciences, which underscore that the functional utility and predominant use of a product are key factors in determining its classification. Based on the literature, explanatory notes, and relevant rulings, CAAR Mumbai concluded that the correct classification for these vitamin premixes falls under CTH 2309 9090, which covers preparations used in animal feed.
FULL TEXT OF THE ORDER OF CUSTOMS AUTHORITY OF ADVANCE RULING, MUMBAI
M/s. BASF private limited (hereinafter referred to as “the applicant”, in short), a private limited company registered in India under Companies Act, 1956 filed AAR-1) for advance ruling before the Customs Authority for Advance bai (CAAR in short). The said application was filed in the secretariat of Mumbai on 20.04.2022 along with enclosures in terms of Section 28H (1) s Act, 1962 (hereinafter referred to as the ‘Act’ also). The applicant e ruling on appropriate classification of vitamin premixes.
2. The applicant is a leading transnational company in the chemical industry and renowned BASF group, a global supplier of innovative feed additives aquaculture and companion animals. Headquartered at Mumbai, the manufacturing facilities at Thane, Mangalore, Dahej and Ankleshwar. imports and trades in various categories of products used in the f animal feed supplements. One such group of products are vitamin imported from Applicant’s parent company (BASF, Germany) and other third d/un-related) for use in the manufacture of animal feed/supplements.
3. The Customs Authority for Advance Ruling, Mumbai, after providing opportunity tice to the applicant and considering the facts of the case and statutory led vide its Ruling dated 08.07.2022 that the subject import goods i.e. N 98%. CHOLINC.LSG 75%, LUTA.E 50, LUTA. A/D3 1000/200 PLUS, 00 PLUS and LUTAVIT 32 SG 80 would merit classification under Tariff of the First Schedule to the Customs Tariff Act, 1975.
4. Aggrieved by the Ruling No. CAAR/Mum/ARC/24/2022 dated 08.07.2022 passed by th Customs Authority for Advance Ruling, Mumbai, the applicant had filed an appeal dated 03.10.2022 before the Hon’ble High Court. In the aforesaid Customs Appeal No. 40 of 2022 filed by the applicant Hon’ble High Court passed the order dated 09.08. p024 as under:
“In these circumstances, we hereby quash and set aside the impugned order dated 8th July, 2022 and remand the matter for de novo consideration.
Respondent No. 6 shall pass a reasoned order dealing with all the submissions of appellant on or before 15th October, 2024. Before passing any order, he shall give a personal hearing to appellant, notice whereof shall be communicated at least 5 working days in advance.
After the personals hearing, should appellant wishes to file any written submission recording what transpired during the course of personal hearing, same shall e filed within 3 working days of personal hearing and that shall also be dealt with in. the final order.
Appeal disposed in above terms”
4. Accordingly as per directions of the Hon’ble High Court, and to pass speaking order comments were sought from the jurisdictional Commissionerates. However, no n received. The applicant had submitted a copy of the original application office. The applicant and the department were given an opportunity of Personal Hearing in this matter on 25.09.2024. Shri V. Sridharan, Sr. Advocate; Ms Anaya Bhide, Advocate; Ms Srinidhi G., Advocate; Shri Ganesh Borge, Manager; Shri Deeraj Mahajan, Commercial Manager and Shri Arun Kumar Sharma, Business Head attended the hearing on behalf of M/s BASF India Ltd.
5. During the personal hearing, the applicant reiterated their submissions filed with the application. They mainly contended that the subject goods LUTA.E 50, LUTA. A/D3 1000/200 PLUS, LUTAVIT A 1000 PLUS and LUTAVIT B2 SG 80 having main ingredient 50% Vitamin + 50% Silica; 40.5% Vitamin and rest Gelatin and Glucose; 40% vitamin and balance Gelatin, Glucose and Silica; and 80% vitamin and rest inactive ingredients, respectively; merit classification under CTH 23099090. They also provided a compendium of literature on this issue together with relevant Heading from Customs Tariff, HSN Explanatory notes, circulars, instructions and certain case laws. They did not press the commodities i.e. LUTA.CALPA N 98% and CHOLINC.LSG 75% for classification. Nobody appeared from the department to represent their case.
6. The Office of the Principal Commissioner of Customs (Port), Kolkata, however. vide their letter dated 06.10.2024 received in this office on 11.10.2024, submitted that the order of Hon’ble High Court dated 09.08.2024 in this matter has been accepted and that they (the applicant) are eligible applicant in terms of Section 28(E)(C) of the Customs Act, 1962. However, no comments on the merit of the case has been offered by any of the Jurisdictional offices.
7. The Advocate of the Applicant has filed an additional submission dated 09.10.2024 as detailed below in connection with the Personal Hearing held on 25.09.2024. During the course of Personal Hearing, the Applicant sought to withdraw their application for the two products namely Choline Chloride 75% and Lutavi@Calpan 98%.
Accordingly, they has provided the details of following four (4) products:
i. Lutavit® E 50
ii. Lutavit® A/D3 1000/200 Plus
iii. Lutavit® A 1000 Plus
iv. Lutavit® B2 SG 80
8. The applicant has submitted the technical specifications and relevant documentation of the aforesaid products associating them as preparations comprising of vitamin(s) (active ingredients) along with inactive ingredients consisting of carriers, anti-oxidants, preservatives, etc. for use in animal feed. They specified that the products question are specifically conceptualized, designed, formulated and intended for use in animal feeding. This is evident from the technical data sheet of the product (which specifies that the same is for use in animal feeding) as well as from the safety data sheets (which describes the products in question as “feed additive”).
9. The applicant has provided a summarized detail of the composition of the subject goods which is produced as below:
10. The applicant has submitted that the aforesaid products are manufactured by t’s affiliates abroad, and are then imported into India. Except for a nitty being purchased/ imported by traders, balance quantity is imported/ y either Animal Feed manufacturers / Poultry Readers/ premix manufactures of animal feed. purchased animal feed. These products are either purchased by the Buyers Applicant’s affiliates abroad, or the same are purchased from the Applicant post import India, or purchased from the Applicant through High Sea Sale.
11. The Applicant has also submitted the details of the names of buyers of each of question, during the period of January 2019 to December 2023 and also the quantity purchased by each buyer as summarized below
| SI. No. | Product | % of Total Quantity sold to Animal Feed manufacturers / Poultry Rearers / Animal Feed Premix Manufacturers (For period January 2019 to December 2023) | % Quantity purchased by traders (For period January 2019 to December 2023) |
| 1. | Lutavit E50 | 91.2% | 8.8% |
| 2. | Lutavit 0A/D3 1000/200 Plus/ Lutavit ®A/D3 1000/200 Nxt | 95.7% | 4.3% |
| 3. | Lutavit A 1000 Pius/ Lutavit A 1000 Nxt | 100% | 0% |
| 4. | Lutavit B2 SG 80 | 94% | 6% |
12. The applicant has clarified in his submission that even the quantity purchased by the traders, is by major traders like Kantilal Manilal and Company Private Limited and Dilipkumar & Go, who are renowned traders of animal feed for past many decades, therefore, it is established that the products in question are actually used for animal feeding. The product, even at the time of conception and manufacture, was conceived solely for the purpose of animal feeding.
13. The applicant has further submitted that the vitamins must be administered to animals in appropriate quantities: not too less, and not too more and its requirement also differs from animal to animal. Therefore, care must be taken to ensure that the vitamin quantity being given to the animals is good enough to take care–of their daily requirements, but not in excess quantity, which can start causing them harm.
14. The applicant has submitted that direct administration of micro-ingredients. (like vitamins),or direct mixing of micro-ingredients in the final feed is riot recommended for the following reasons:
i. Micro-ingredients are added to feed in at very low levels. It is essential that the quantum added must be within the recommended limits.
ii. It is difficult to ensure homogenous dispersion of micro-ingredient. Of such low quantity in a big batch of complete feed. For example, minute quantities of vitamins in thousands of Kgs of feed.
iii. Micro-ingredients are prone to uptake of moisture. This further hampers its ability to distribute and mix uniformly in the feed.
iv. During mixing and grinding, the particles of micro-ingredients may develop a static charge and the individual particles repel one another, thereby affecting the. distribution of the micro-ingredient in the feed mixture. Thus, an anti-static agent is needed to be added to the micro-ingredient
15. On the basis of the various references made, the applicant has contended that such vitamin supplementation, the micro-ingredients like vitamins are d into the form of premix, and the premix is then added to animal feed. d the Author D.V. Reddy for definition of Premixes which is given below: undertaking first prepare They refer
Premix
Premixes are formulations of one or more microingredients, such as a vitamins, minerals, or drugs mixed with diluent and/ or carried ingredient. Diluent and carrier should be inert and inactive. Premixes are used to facilitate uniform mixing of the microingredients in the complete feed or concentrate mixture.
Diluent is an edible substance used to mix with and reduce the concentration of nutrients and/or additives to make them more acceptable to animals, safer to use and more capable of being mixed uniformly in feed. The mixing properties of the original ingredients are added to facilities uniform incorporation of the latter into feed. The active principles are absorbed, impregnated or coated into the edible material in such a way as to physically carry the active ingredient. When a carrier is used with a microingredients the mixing properties are drastically altered.
16. Premixes are formulations of one or more micro-ingredients (vitamins) mixed nd carrier. As per the definition of Premix by the Author D. V. Reddy, a edible material to which ingredients are added to facilitate uniform of such ingredients into feeds. It is evident that for undertaking such ,mentation, the micro-ingredients like vitamins are first prepared into the ix, and the premix is then added to animal feed. Thus, such ion is necessarily done through a two-step process: 1) preparing of the 2) addition of premix to animal feed. Thus, “premixes” are an essential and an indispensable for mixing micronutrients like vitamins in animai feed.
17. The carrier absorbs or coats the micro-ingredient in order to physically carry the micro-ingredient, thereby facilitating the uniform mixing of the product into the feed.
18. The applicant preparing of “premix” is not just for convenience, but is an essential necessity to ensure that the vitamins are uniformly mixed in the final feed, so that each uniform and appropriate level of the vitamin, to achieve the desired benefit. d. the vitamin will be blended at the rate of 0.5% to 1%, thereby forming quantity of the complete feed.
19. The applicant has given a detailed submission concluding that all the products in question are vitamin premixes for animal feed and contain suitable carriers of silica, s and fermentation residue, for allowing the homogenous mixing in animal feed particularly . Therefore, the products in question have been transformed specifically and exclusively for use in animal feeding. Tile same are no longer used as general vitamin supplements, and the same are squarely covered under Heading 2309.
20. The applicant has further submitted that the products are not classifiable under Heading 2936 as the additives present in the products are solely for the purpose of rendering them suitable for use in animal feed and render it unfit for general use. Further, the products in question are added with carriers rendering them suitable for specific use in animal feed only. This is evident from the labels and other technical documentation of the products. It is also clear from the very conception and inception stage of the product which establishes its use in animal feed. The carriers are added keeping in mind the specific end use in mind. The one and only reason for such addition is to ensure the homogenous dispersion and mixing of the vitamin/ vitamins in the complete animal feeds.
21. The applicant has submitted various case laws, circulars and instructions issued by the CBIC and by the Department of Animal Husbandry in support of their contention claiming the classification of the products under Heading 2309.
DISCUSSION AND FINDINGS
22.1 I have taken into consideration all the materials placed before me in respect of the subject goods including all the submissions made by the .applicant during the personal hearing,. As per the present submission dated 09.10.2024, the applicant has requested to withdraw –their application in respect of two products namely Choline Chloride 75% and Lutavit® Calpain 98%, which is permitted. I have also considered the observation made by the Flonible High Court in its order dated 09.08.202.1. Accordingly, I proceed to pronounce a ruling on the basis of information available on record as well as existing legal framework having bearing on the classification, of the goods in question under the first schedule of the Customs Tariff Act,1975 in respect of the following four items:
i. Lutavit® E 50
ii. Lutavit® PJD3 1000/200 Plus
iii Lutavit® A 1000 Plus
iv. Lutavit® B2 SG 80
22.2 Before deriding on the issue, let me deliberate on the legal framework prescribed in Customs Tariff Act, 1975, Chapter/ Section notes along with FISN explanatory notes.
22.3 I observe that Hon’ble Supreme Court in a number of decisions has held is a safe guide for ascertaining the true meaning of any expression used ins Tariff Act. The HSN explanatory notes to Heading 2309 covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed:
(1) to provide the animal with a rational and balanced daily diet (complete feed);
(2) to achieves a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or
(3) for use i making complete or supplementary feeds.
The first type of animal feedstuff i.e. complete feed contains energy nutrients, body building’ protein nutrients or mineral and function nutrients. The second type of animal feed stuff i.e. secondary feed is a preparation devised to compensate for deficiencies, so as to ensure a well-balanced animal diet, consisting of proteins, minerals or vitamins plus additional-energy feeds (carbohydrates). The preparation of the third category, also known as premixes, are used in making the complete feed or supplementary feed. The products in question are stated to belong the category of premix.
The HSN explanatory notes to Heading 2309 further elaborates on premixes as below:
(C) PARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR UPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE
e preparations, known in trade as “premixes”, are, generally king, compound compositions consisting of a number of trances (sometimes called additives) the nature and proportions which vary according to the animal production required. These trances are of three types:
(1) Those which improve digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health such as vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetizers, etc
(2) Those designed to preserve the feeding stuffs (particularly. the fatly components) until consumption by the animal such as stabilizers, anti-oxidants, etc.
(3) Those which serve as carriers and which may consist either of one or more organic nutritive substances (manioc or soya flour or meal, middling’s, yeast, various residues of the food industries, etc.) or of inorganic substances (e.g., magnesite, chalk, kaolin, salt, phosphates).
The concentration of the substances described in (1) above and the ?fixture of the carrier are determined so as to ensure, in particular, homogeneous dispersion and mixing of these substances in the compound feeds to which the preparations are added.
Provided they are of a kind used in animal feeding, this group also includes:
(a) Preparations consisting of several mineral substances.
(b) Preparations consisting of an active substance of the type described in (1) above with a carrier, for example products of the antibiotics manufacturing process obtained by simply drying the mass, i.e. the entire contents of the fermentation vessel (essentially mycelium,.. the . culture medium and the antibiotic)„ The’ resulting dry substances, whether or not standardised by adding organic or inorganic substance’s, has an antibiotic content ranging generally between 8 % and 16 %. and is used as basic material in preparing, in particular, “premixes “.
The preparations of this group should not, however, be confused with. certain preparations .for veterinary uses. The latter are generally identifiable by the ‘medicinal nature and much higher concentration of the ‘active substances, and are often put up in a different way.
……………………
The heading excludes:.
………………………..
(e) Vitamins, whether or not chemically defined or intermixed, Whether or not put up in any solvent or stabilised by the addition of antioxidants or anticaking agents, by adsorption on a substrate applying a protective coating of for example, gelatin, waxes, etc., provided that the quantity of such additives, trade or coating does not exceed that required for preservation or transport and provided that such additives, trades or coating do not alter the character of the ins and do not render them particularly suitable for offic use rather than for general use (heading 29.36).
22.4 On the basis of the technical data sheet and specifications of the products in reduced in para 9 supra) submitted by the applicant, I find that the r (4) products are preparations comprising of vitamins (as active long with inactive ingredients in the nature of carriers, anti-oxidants, , etc. The applicant has claimed that these four (4) products are to be used in animal feed only.
22.5 Further must r, I find that most vitamins cannot be synthesized by the animals and need through feed. The daily vitamin requirement of animals differs from mal. The said requirement is difficult to be met by animal feed alone. supplements have to be added to animal feed. However, it is important tidy of vitamin required to be administered to animals should be in unities: neither too less, and nor too more. Further, the requirement of supplements may also differ from animal to animal.
22.6 The applicant has made a reference to premixes”, article titled “Characteristics remixes”, a relevant extract of the characteristics of the premix which is below:
22.7 From he above literatures, it is understood that Premixes have very high concentration of active ingredients generally dozens to hundreds of times or requirement nd are administered in smaller quantities. Direct feeding of vitamins to the animals i dangerous in as much as they contain high concentration of vitamins and it could exult in vitamin poisoning in animals. As vitamins cannot be directly administered, it has to be added to the feed before giving it to the animals. However, direct addition of the vitamins to the feed is not feasible. As per an authentic book by Author D.V. Reddy titled “Principles of Animal Nutrition and Feed Technology” relied upon by the applicant, micro-ingredients i.e. nutritional adducts (vitamins, antibiotics, minerals). / drugs, are added to the feed at very low levels, and the dispersion of such low concentrations of active ingredients poses a challenge to the manufacturers. The relevant portion from the book titled “Principles of Animal Nutrition and Feed Technology” is extracted as below:
Microingredient Premixing
Microingredients
Microingredients are nutritional adducts or drugs that are added to the feed at very low levels. Dispersion of such low concentrations of active ingredients presents a challenge to the manufacturers of the compound feed. This challenge can be met by the premix-the dilution of an active component with a suitable carrier.
Physical characteristics of microingredients such as particle size, particle shape, specific weight, hygroscopicity, “susceptibility to electrostatic charges, adhesiveness of the particles due to physical properties, such as rough surfaces or additions of adhesives such as oils influence mixing them with the other feed ingredients. Microingredients have a very small particle size and high density compared to other feed ingredients. A significant uptake of moisture by a Microingredient can seriously hamper its ability to distribute and mix well. A hygroscopic ingredient can affect the chemical stability of any moisture sensitive component. This problem may be dealt with during formulations by complexation or through a coating that acts as a moisture barrier.
During intensive grinding to reduce particle size, a pure crystalline compound frequently develops a static charge and hence the individual particles repel one another which may affect its distribution in the premix and in the feed mixture. An antistatic agent such as an unsaturated vegetable oil is suggested.
22.8 Reference is also made to the European Feed Manufacturers’ Federation (FEFAC)’s article, titled as “What is a premix?”. This article states that in order to ensure that micro-ingredients are mixed with macro-ingredients (in a homogeneous way), an intermediate dilution step is required via a ‘premix–. The relevant portion is extracted below:
What is a premix?
Premixes are complex mixtures of vitamins, minerals, trace elements and other feed additives that are incorporated at levels between 0.2 and 0.5% in the compound feed.
Adequate nutrition requires feed compositions consisting of macro ingredients and micro ingredients, sometimes incorporated at ppm levels (e.g. vitamins). To secure that these micro-ingredients are mixed with macro-ingredients in an homogeneous way, an intermediate dilution step is required via a so-called premixture. Premixtures are legally defined as mixtures of feed additives or mixtures of one or more feed additives with feed materials or water used as carriers, not intended for direct feeding to animals (Regulation (EC) No 1831/2003). This premixture is incorporated at levels typically between 0.2 to 0.5% in the compound feed. The manufacturing of premixtures requires a specific technology and is often performed by specialized companies.
22.9 From the above, it can be understood that Premixes are formulations of one -ingredients (vitamins) mixed with diluent and carrier. A carrier is usually an inactive accessory substance (vehicle) or a substance (such as a catalyst) with’ nice some element or group is transferred from one compound to per the reference book “Principles of Animal Nutrition and Feed carrier is an edible material to which ingredients are added to facilitate oration of such ingredients into feeds. Therefore, the carrier absorbs micro-ingredient in order to physically carry the micro-ingredient, thereby uniform mixing of the product into the feed. I find that the wording used nature Notes to Heading 2309 Para II(C), which reads – Preparations asking The Complete Feeds Or Supplementary Feed…, spells out the n, nature, character, composition, etc. that is used in the premixes used or more micro an inactive a whose ores another. A Technology”, uniform info or coats the facilitating th in HSN Expln For Use In similar functions in animal fee
22.10 The applicant has provided a chart of active ingredient along with a Non-active ingredient constituting the said products which is reproduced below. a ingredient/carrier consulting the said products which is reproduced below.
22.11 On going through the above detailed chart, I observe that the goods in question are compounds ranging from 38.5% to 80% of Vitamins therein and the remaining parts are containing Silica, Gelatin, Fermentation Preservatives, anti-oxidants, water in different proportions. The process, nature, character and use thereof clearly translates the characteristics of the subject goods as animal feed vitamin premixes as claimed by the applicant.
22.12 I have also gone through the individual product details which is given as under: Lutavit E50 :
Lutavit E50 is intended for pigs and poultry. The Silica present in Lutavit E50 is colloidal Silica which is nothing but a dispersion of amorphous silicon dioxide particles in water. The use of silica as a carrier in animal feed premixes, particularly in Vitamin E premixes s a standard practice. Reference is made to Chapter 60 of the book titled “Colloidal Silica, Fundamentals and Applications” published by Taylor & Francis Group, LLC in 2006. Relevant portion of the book is extracted below:
CARRIER
The ability to manufacture precipitated silicas and silica gels having large pore volumes gives rise to their use as carriers of numerous liquids; a silica can be made to absorb up to 3 times its weight of many liquids [14].
Because silicas can be manufactured to conform to food-grade regulations, they can be used to absorb essential oils, flavors, and feed supplements such as choline chloride and vitamin E oil. The absorption of pesticides is also a major application. Often the liquid is released when the powder comes into contact with water, owing to the higher affinity of the silica surface for water than for the absorbed liquid. Potential benefits include more
convenient dispensing and improved stability when sensitive materials are handled.
In the last few years, new micro granulate carriers based on precipitated silicas have been successfully introduced to the major carrier applications. Based on advanced drying technology, these products offer the same good absorption characteristics but improved flow behavior and dust-free handling.
Silica gels can also be used to encapsulate molecules. For example, biological molecules such as enzymes have been embedded within silica gels, where they retain their bioactivity and remain accessible to external reagents by diffusion through the pore structure [15].
22.13 Thus, on the basis of the above literatures, product specifications, application and the Test Report of Doctor’s Analytical Laboratory Pvt. Ltd., alongwith the Technical and Safety Data Sheet provided by the applicant, it can be understood that Lutavit E 50 is a preparation made of vitamin, as an active ingredient together with silica as a carrier. Accordingly, I observe that Lutavit E 50 is a vitamin premix for specific use in animal feed and is squarely covered under Heading 2309, in as much as the preparation of a kind used in animal feeding which comes under the chapter heading 2309.
22.14 Lutavit® A/D3 1000/200 Plus :
The use of gelatin and glucose a carrier in Vitamin A and Vitamin A/D3 has been documented n various literature. Reference is made to KIRK-OTHMER, ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY, pg. 248 — 249 (4th Ed., Vol 25). The relevant portion is extracted bel •w:
22.15 Combination of vitamin A and vitamin D are used widely for animal feeding. Solutions of vitamin D in oil or in oil-on-dry carriers like corn or flour are used in animal feed. However r, the animal feed containing high levels of minerals and vitamin D formulation are beamlets or powders of dry suspensions in gelatin, carbohydrates, wax and cellulose derivates. In order to allow the vitamins to mix with the animal feed (which contains high levels of minerals), carriers of gelatin and glucose / fructose (i.e. carbohydrates) are added to the product. Therefore, the carriers added to Lutavit® A/D3 are specifically used for allowing homogenous mixing of the vitamin in animal feed.
22.16 Thus, on the basis of the above literatures, product specifications, application and the Test Report of Doctor’s Analytical Laboratory Pvt. Ltd., alongwith the Technical and Safety Data Sheet provided by the applicant, I find that Lutavit® A/D3 1000/200 Plus is a preparation made of vitamin, as an active ingredient together with glucose, silica and gelatin as a carrier. Therefore, I observe that Lutavit® A/D3 1000/200 Plus is a vitamin premix for specific use in animal feed, and is squarely covered under Heading 2309, in as much as the preparation of a kind used in animal feeding which comes under the chapter heading 2309.
22.17 Lutavit® A1000Plus :
The technical data sheet submitted by the applicant clearly states that the aforesaid product is used for administering to pigs, poultry, horses, etc. Reference is made to publication by Micheal Coelho titled ‘Vitamin Stability in Premixes and Feeds A Practical Approach in Ruminant Diets’ which explains the requirement of gelatin and sugars in vitamin A premixes for animal feeding. The relevant portions of the publication are extracted below:
Vitamin Intrinsic Factors
Vitamin A
Several vitamins contain unsaturated carbon atoms or have double bonds, both highly susceptible to oxidation. For example, vitamin A retinol has both a free hydroxy group and 5 double bonds. The esterification of retinol with acetic acid produces retinyl acetate which has the hydroxy group protected, but still has 5 double bonds susceptible to oxidation. For this reason, even pure retinyl acetate oil has to be emulsified in gelatin and sugars, and processed into a beadle containing an antioxidant.
New technology has further improved vitamin A and D3 stability by a crosslinking process, such as the reaction between the gelatin and the sugar, that makes the beadle insoluble in water, giving it a more resistant coating that can sustain higher pressure, friction, temperature and humidity.
22.18 Thus from the above I observe that Lutavit ® A1000 Plus contains Vitamin A and is incorporated in finally dispersed form in a matrix of Gelatin, carbohydrates and is stabilized with anti-oxidants with added carrier as Silica. Accordingly, it is safely deduced that Lutavit® A 1000 Plus is a vitamin premix for specific use in animal feed, and is squarely covered under Heading 2309 — A preparation of a kind used in animal feeding.
22.19 Lutavit B2 SG 80 :
For therapeutic use, riboflavin is produced by chemical synthesis, whereas concentrates for poultry and livestock feeds are manufactured by fermentation using microorganisms such as Ashbee gossypol and Eremothecium ashbin, which have the capacity to synthesize large quantities of riboflavin.
Vitamin B2 (riboflavin) for therapeutic uses is produced by chemical synthesis, whereas for use in animal feeding, it is manufactured through fermentation using micro-organisms such as ‘Ashbya gossypii’.
22.20 Lutavit® B2 SG 80 is produced by fermenting ‘Ashbya gossypii’. Riboflavin currently available in the market and is primarily used as a feed additive and produced through the process of fermentation. During fermentation process for vitamin B2 (riboflavin), riboflavin crystallizes in the fermentation broth and these crystals are recovered from the broth and separated from the biomass. Vitamin B2 (riboflavin) products for food and pharmaceutical applications contain a higher purity. More significantly, for feed applications, products with reduced purity are accepted since the impurities consist of residual biomass with additional nutritional value. Thus, non-riboflavin contents are allowed to remain in the residue for their own nutritional value.
22.21 Post fermentation process, the resultant material undergoes purification process to extract vitamin B2 of the highest purity (i.e. in the range of 98% and above). The remaining residual material is subject to further purification to achieve vitamin B2 of 80% concentration. This product with 80% concentration of vitamin B2, contains 20% fermentation residue. This fermentation residue (residual biomass) is retained in the product as it is nutritious to animals. It is observed that the fermentation residue is retained in the product for specific use in the animal feed.
22.22 The provision of fermentation residue as a carrier is also contemplated in the HSN Explanatory Notes to Heading 2309 itself. The relevant portion of the HSN Explanatory Notes Para II(C) to Heading 2309 is extracted below for ease of reference:
“Provided they are of a kind used in animal feeding, this group also includes:
(a) Preparations consisting of several mineral substances.
(b) Preparations consisting of an active substance of the type described in
(1) above with a carrier, for example products of the antibiotics manufacturing process obtained by simply drying the mass, i.e. the entire contents of the fermentation vessel (essentially mycelium, the culture medium and the antibiotic). The resulting dry substance, whether or not standardised by adding organic or inorganic substances, has an antibiotic content ranging generally between 8 % and 16 % and is used as basic material in preparing, in particular, “premixes”.
22.23 Lutavit® B2 SG 80 preparation, containing the residual biomass (fermentation residue) is in nature of carrier. Further, the above literature, product specifications, application and the Test Report of Doctor’s Analytical Laboratory Pvt. Ltd., alongwith the Technical and Safety Data Sheet provided by the applicant suggests that Lutavit® A B2 SG 80 is a preparation made of vitamin B2, as an active ingredient together with Fermentation residues as a carrier. Based on these facts and processes I hold that Lutavit® B2 SG 80 is a vitamin premix for specific use in animal feed, and is squarely covered under Heading 2309.
22.24 I observe that all the subject products in question are specific vitamin premixes for animal feed and contain suitable carriers of silica, gelatin, sugars and fermentation residue, for allowing the homogenous mixing in animal feed. These products no longer have any general use as vitamin supplements. The applicant has also claimed that these vitamin premixes are solely meant for animal feed and are not suitable for human consumption.
22.25 Heading 2309 of the HSN Explanatory Notes excludes those vitamins which contain addition es necessary for preservation and transportation of the vitamin itself and are suitable for general use. Those vitamins fall under Heading 2936. The relevant portion of the HSN Explanatory Notes to Heading 2309 states:
“The heading excludes:
(e) Vitamins, whether or not chemically defined or intermixed, whet’ er or not put up in any solvent or stabilised by the addition of any oxidants or anticaking agents, by adsorption on a substrate or b applying a protective coating of for example, gelatin, waxes, fats, etc., provided that the quantity of such additives, subs rate or coating does not exceed that required for preservation or transport and provided that such additives, subs rates or coating do not alter the character of the vita ins and do not render them particularly suitable for spec fic use rather than for general use (heading 29.36).”
22.26 The wove provision is mirrored / reflected in Heading 2936 also. The relevant portion of Heading 2936 of HSN Explanatory Notes states:
29.3 – Provitamins and vitamins, natural or reproduced by synthesis (including natural concentrates), derivatives thereof used primarily as vitamins, and intermixtures of the foregoing, whether or no in any solvent (+).
This heading includes:
(a) Provitamins and vitamins, whether natural or reproduced by synthesis, and derivatives thereof used primarily as vita ins.
(b) Concentrates of natural vitamins (e.g., of vitamin A or of vita in D); these are enriched forms of these vitamins. These cone: nitrates may be used as such (e.g., for adding to animal feedings stuffs), or they may be worked up for the isolation of the vita in.
(c) Intermixtures of vitamins, of provitamins or of concentrates, such as, for instance, natural concentrates of vita ins A and D in various proportions, to which an additional quantity of vitamin A or D has been added subsequently.
(d) The above products diluted in any solvent (e.g., ethyl oleate, proptne-1,2-diol, ethynediol, vegetable oils).
The products of this heading may be stabilised for the purposes of preservation or transport:
– by adding anti-oxidants,
– by adding anti-caking agents(e.g., carbohydrates),
– by coating with appropriate substance (e.g., gelatin, waxes or fats), whether or not plasticiser, or
– by adsorbing on appropriate substances (e.g., silicic acid),
provided that the quantity added or the processing in no case exceeds that necessary for their preservation or transport and that the addition or processing does not alter the character of the basic product and render it particularly suitable for specific use rather than for general use.
22.27 On the basis of the above facts, I observe that it is distinctively clear that vitamins under Heading 2936 may be diluted or added with additives for the purposes of preservation and transportation of the vitamin, provided that such additives do not render the vitamins for specific use. In the present case, from the technical documentation of the products and labels, I find that the aforesaid products in question are substantially added with carriers (with some amount of preservatives and antioxidants) rendering them suitable for specific use in animal feed only. The carriers are added in it for the specific end use purposes and for ensuring homogenous dispersion and mixing of the vitamin in the complete animal feeds.
22.28 Further, the boards Circular No. 188/22/95 dated’ 26.03.1996 mentions as below:
“5. Heading 23.02 of Central Excise Tariff i.e. “preparations of a kind used in. animal feeding including dog and cat food” corresponds to Heading 23.09 “Preparations of a kind used in animal feeding” or the HSN. As per Explanatory notes under Heading 23.09 of the HSN, the said heading covers complete animal feeds, supplementary animal feeds and preparations for use in making the complete feeds or supplementary feeds. The preparations for use in making complete feeds or supplementary feeds are known in the trade as ‘premixes”. These preparations are compound composition consisting of a number of substances- each type of these substances being present in the ‘premix” in varying proportions to serve a particular purpose. The explanatory notes under heading 23.09 of HSN further indicate that pre-mixes contain, in additions to the active substances (vitamins, amino-acids, anti-biotics, coccidiostats etc.) and stabilizers, anti-oxidants etc., certain organic or in- organic nutritive substances known as carriers which help in homogeneous dispersion and mixing of the active substances in the compound feeds to which the preparations referred to in the said explanatory notes are added.
6. It this view of the matter, it would appear that preparations containing the active substances (vitamins or provitamins, amino-acids, antibiotics, etc.) along with the said carriers would fall under Heading 23.02 of the CET provided such preparations are of a kind used in animal feeding. It r be noted that Heading 23.09 of the HSN excludes products of nd medicaments of Heading 30.03 or 30.04. Hence, while deciding tion of the products claimed to be animal feed supplements, it may be necessary to ensured that the said animal feed supplements are ordinarily or commonly known to the trade as products for a specific use in animal feeding.”
22.28 Accor ing to the above mentioned Board’s Circular, the preparation containing active inbred ent used for animal feeding, is classifiable under heading 2309. The Board has al o clarified that while deciding the classification of the products claimed to be animal feed supplements, it is necessary to ensure that the said animal feed supplements re ordinarily or commonly known in the trade as products for a specific use in animal feeding.
22.29 Similar clarification was issued vis Board Circular No. 80/54/2018-GST dated 31.12.2018 which is reproduced below:
“5. Applicable GST rate on Animal Feed Supplements/feed additives from drugs:
5.1 Representations have been received seeking clarification regarding GST rate app cable on Animal Feed Supplements/feed additives from drugs. The disputer in classification of Animal Feed Supplements/feed additives from drugs between tariff heading 2309 and 2936.
5.2 As ‘er the HSN, 2309 inter alia covers reading vitamins and provitamins which I’m rove digestion and, more generally, ensure that the animal makes good use of the feeds and safeguard its health. On the other hand, HS code 2936 coves vitamins nd provitamins which are medicinal in nature and have much higher concenter tion of active substance.
—
—
5.5 A product deserves classification chapter 29 (equally applicable to heading is an item of general use, e.g., if a product is of specific use, say dietary nt for human being product particularly suitable for a specific use rather general use. Vitamins and provitamins are normally covered under ding 2936, but if they’re prepared as food supplements in the form , etc. they would not be classifiable under this heading as the way resented, they are suitable for a specific use. Heading 2309 would Ms like feed supplements for animals that contain vitamins and rudiments – such as cereals and proteins. These are covered in 23 under heading code 2309, or antibiotic preparations used in ending – for example a dried antibiotic mass on a carrier like cereal The antibiotic content in these items is usually between 8% and 16%. code 2309 would cover only such product which in the from supplied, are capable of specific use as food supplement for animals and not capable of any general use. If the vitamins, provitamins are supplied in a form in which they are capable of general use, i.e. in the form in which it could be used as inputs or raw materials for further processing, instead of being ready to use, then these would be classifiable under heading 2936.”
22.30 It is to be noted that the apart from the active ingredients present in the impugned goods, all the four (4) products in question also contains suitable carriers of silica, gelatin, sugars and fermentation residue, for allowing the homogenous mixing in animal feed specifically. The inclusion of the such carriers make the impugned products suitable for specific use. Therefore, while classifying we need to consider the product as a whole rather than only the active ingredient present in the specific product.
22.31. Relevant portion of the heading 2309 is reproduced as under:
22.32 The CTH 2309 — Preparation of a Kind used in Animal Feeding covers within its scope and ambit, mainly subheading with CTI 23091000 — Dog or Cat food, put up for retail sale followed by 230990- Other. The Sub Heading 230990 – other is further is categorized by triple dash tariff item: Compounded animal feed, Concentrates for compound animal feed, Feeds for fish (prawn, etc.) and others. The products in question are neither dog or cat food, nor are they prawn, shrimp, fish feed. The products in question are animal feed, therefore, the correct classification for the subject goods is 2309 9090 – Other.
22.33 The larger Bench of CESTAT in the decision of Tetragon Chemie (P) Ltd. Vs. CCE – 2001 (138) ELT 414 examined the scope of Heading 2309 in detail and after considering the various evidence and submissions, observed as follows:
“72. The entire controversy centres round the contention whether Chapter 23 of CETA 1985 covers preparations of a kind used in animal feeding which contain minerals or synthetic active ingredients. Detailed arguments have been adduced on Note to Chapter 23. Revenue contended that Chapter 23, according to the Note covers only products of a kind used in animal feeding obtained by processing vegetable or animal materials. They supported this contention by citing and relying upon the decision of in the case of M/ s. Ranbaxy Laboratories. It was contended for the the word ‘includes’ used in the Chapter Note should be read as covers extend the scope of the Chapter, whereas the Assessee’s Counsels nth and submitted that the use of the word ‘includes’ extends the scope seed in the Chapter Note. We have perused the detailed arguments. On elation of the submissions made and the case law cited and relied upon we find that there is no limiting factor in the Chapter Note so as to restrict n the contrary, we find that Heading 23.02 of CETA 1985 corresponds .09 of HSN. Explanatory Notes under Heading 23.09 of HSN speak of rations which contain minerals, vitamins, carbohydrates, proteins etc. tory Notes–of HSN clearly speak of feed additives and feed supplements. these Notes, animal feed additives and animal feed supplements are editing classification under Heading 23.09 of HSN which corresponds .02 of the CETA 1985. We further note that this aspect of animal feed feed supplements was noted by the Tribunal in its judgment in the case Vet Industries (P) Limited and observed that ‘We think, however, that the is the one in which an animal feed is understood to be a complete feed a feed as such feeds can be made to be by human ingenuity and that r be only one or another of the various ingredients, elements, substances 1 needs in a balanced feed.’
73. We further r note that these preparations known in the trade as ‘premixes’ are asking compound compositions consisting of a number of substances fled additives) the nature and proportions of which vary according to the .tion required. Then further details are furnished. This clearly shows that separations mentioned under Heading 23.09 of HSN are concerned, they etic materials also and are not confined to products obtained by impala or vegetable materials. This also supports the view that the use of used’ has been definite to extend the scope of the heading. Further the escribed under Heading 23.09 of HSN cannot be ignored in view of the contrary, we shall have to give due weightage to them.
101. In Circular No. 1/90, dated 1-1-1990, it was clarified that animal feed supplements which are just inter-mixtures of vitamins only without other ingredients except solvents, stabilizers or anti-oxidents cannot be classified under Heading 23.02 of CETA 1985 even though they are used as animal feed supplement. On examination of this Circular, we find that such inter-mixtures are specifically covered by Heading 29.36. We have examined the preparations, their composition and the process of manufacture. We find that all these preparations comprise only just of inter-mixtures Since the preparations before us comprise not only of vitamins, in addition, they contain carbo-hydrates, proteins, minerals etc. In terms of this Circular also, they will not be classifiable under Heading 29.36. The clarification on this issue was given by the Board by its Circular No. 188/ 22/ 96-C.X., dated 26-3-1996 wherein it was clarified in para 5 that Heading 23.02 of CETA 1985, i.e. preparations of a kind used in animal feeding including Dog and Cat food corresponds to Heading 23.09 `Preparations of a kind used in animal feeding’ of HSN. As per explanatory notes under Heading 23.09, the said heading covers complete animal feeds, supplementary animal feeds and preparations for use in making a complete feed or supplementary feeds. The preparations .for use in making complete feeds or supplemental feeds are known in the trade as premixes. These preparations of compound composition’s consisting a number of substances, each type of these substances being present in the premix in varying proportions to serve a. particular purpose. Explanatory Notes under Heading 23.09 of HSN (Pages 177-178) further indicate that premixes contained in addition to the active substances (vitamins, amino acids, antibiotics, coccidiostats etc.) and stabilizers, antioxidants, solvents etc.’ In para 6, the Board clarified “In this view of the matter, it would appear that preparations containing active substances (Vitamins or provitamins, amino-acids, antibiotics, .coccidiostats, etc.) along with the said carriers would fall under Heading 23.02 of CETA 1985, provided such preparations are of a kind used in animal feeding. It may, however, be noted that Heading 23.09 of HSN excludes products of Chapter 29 and medicaments of Chapter 30.03 or 30.04. Hence, while deciding the classification of products claimed to be animal feed supplements, it may be necessary. to ensure that the said animal feed supplements are ordinarily or commonly known in the trade as premixes for use in animal feed”. This clarification confirms the fact that if the end use unequivocally shows that the preparation is known in the trade as animal .feed supplement, it should be treated as animal feed supplement.
…….
……
112. Once it is noted that Heading 23.02 of CETA 1985 corresponds to Heading 23.09 of FISN, we have to examine the implication thereof We find that ‘preparations’ mentioned under Heading 23.09 of HSN include sweetened forage and other preparations. Other preparations include preparations for supplementing farm product feed and preparations for use in making the complete feeds. We also note that vitamins or provitamins, amino-acids, anti-biotics, coccidiostats, trace elements, emulsifiers, flavourings and appetizers are the ingredients of these preparations. These descriptions clearly show that the preparations may contain synthetic ingredients also and thus, the findings of the Tribunal in the Ranbaxy Laboratories case that synthetic materials are not covered by Chapter note is fallacious. In para 3 of its order, it has been observed : “The Heading 23.09 of HSN corresponds to Heading 23.02 of the ZETA (and the Chapter Note 23 of CET relating to Tariff Heading 23.02 clearly follows Chapter Note of Chapter 23 of FISN); and if we see this heading of HSN, we find that the examples of the type of products covered by it are as follows :
1. Sweetened Forage (including preparations containing molasses, wheat bran, palm kernel or copra oil-cake, etc.
2. Preparations containing cereals, half(?)-sugar mangolds, tallow, straw etc.
3. Preparations from leguminous vegetables, brewing drugs, oilcake, dairy by-products.
4. Fish or marine mammal soluble in liquid or viscose solutions or in paste or dried and derived from the manufacture of fish or marine meal or oil.
5. Whole green leaf protein concentrate and green fraction leaf protein concentrate obtained from alfalfa (lucerne).
6. Premixes (including those containing mineral substances and vitamins or provitamins, trace elements, appetizers, soya flour or meal, yeast etc.”
It is pertinent o mention that the preparations have been clarified and specified under Heading 23.0 of HSN which has been adopted under corresponding Heading 23.02 of CETA, 19 5 and hence the statute is clear in so far as preparations are covered. The decision •f the larger bench of the CESTAT regarding the classification of vitamin Premixes urn er Heading 2309 was upheld by the Supreme Court. The observation and findings • f the Hon’ble Supreme Court in the said case i.e. Collector v. Tetragon Chemie P. L d. – 2001 (132) E.L.T. 525 (S.C.), is reproduced below:
“4. Th Collector of Central Excise had come to the conclusion that the product did not fall w der Entry 2302 because the product had to be added in a small quantity to the main need to get desired performance of the live stocks or to enhance the performance .f the live stocks beyond the normal levels. He further observed that he would have accepted the plea of the assessees that the products were animal .feed had the product manufactured by them been directly used as such for animals feeding. The claim of the respondents herein was rejected because according to the Collector the products merely were to enhance the performance of live stocks by addition of these supplements o the animal feeds. From this it is evident that the Collector regarded the products in section as animal feed supplements.
5. Or further appeal to the Tribunal it came to the conclusion that animal feed supplements )ere rightly included in Tariff Item 2302 being preparation of a kind used in animal feeding including dogs and cats food. We agree with the conclusion of the Tribunal that even food supplements like the products of the respondents which are used in animals f ding would fall under the Heading 2302 and, therefore, we do not find any merit in this appeal. ‘While affirming the decision of the Tribunal, this appeal is dismissed with no order as to costs.”
I find that the above judgement in the matter of Collector v. Tetragon Chemie P. Ltd. is squarely applicable to this case.
22.34 The Hon’ble CESTAT Mumbai in the case of M/s B.V. Bio Corp Private Limited v. Commissioner of Customs (NS-l), [Final Order No. A/85394-85395/2024, CESTAT Mu bai] held the subject goods ‘folic acid feed premix/additives’ classifiable under Custom. s Tariff Heading 2309. The ratio of the judgement in this case is clearly applicable to the instant case.
22.35 The principal Commissioner of Customs, JNCH, Nhava Sheva in the decision of Kantilal Manilal & Co. Ltd. Order No. 09/2021-22/Commr/NS-1/..INCH dated 23.08.2021 held the following products manufactured by the Applicant’s affiliates abroad itself (which were imported by said Kantilal Manilal) to be classifiable under the Heading 231 9:
a. Lutavit B2 SG 80 A;
b. Lutavit A/D3 1000/200 Plus; and
c. Lutavit E-50
22.36 The Customs Advance Ruling Authority in its Ruling dated 08.07.2022 in para 6.8 relied upon the decision of Hon’ble High Court in the matter of M/s Sonam International reported at 2012(275) ELT 326(ALL) and held that the vitamins of high concentration used for manufacture of animal feed would be classified under CTH 2936. He observed that admittedly all the products in this case had high concentration of vitamins ranging from 40% to 98%.
22.37 The applicant has argued that the decision of the Allahabad High Court in Commissioner of Customs, C.G.O v. Sonam International is not applicable in the instant case as the facts and circumstances in both the cases are distinct.
22.38 In the present application the applicant has mainly contended that the following four (4) products: LUTA.E 50, LUTA. A/D3 1000/200 PLUS, LUTAVIT A 1000 PLUS and LUTAVIT B2 SG 80 and did not press the commodities i.e. LUTA.CALPA N 98% and CHOLINC.LSG 75% for classification (which were a part of the subject classification sought in the original application).
22.39 I find that in the case of M/s Sonam International, the importer had declared that the goods were for use in animal feed and contained calcium carbonate. However, it was found from the test reports that the goods did not contain any calcium carbonate, and further they were fit for human consumption. On the other hand, in the present case, the four products in question are vitamins premixes added with carriers and other ingredients and are used solely for animal feed only. Further, the product under dispute in the case of Sonam International contained vitamin of 99% purity along with 1% antioxidants and stabilizers with no carrier. As such the product, in the instant case is substantially different and contains approximately 38.5%-80% vitamin and remaining carriers and other ingredients, for allowing the homogenous mixture of the products in the complete animal feed. The product considered in the decision of M/s Sonam International was for use in manufacture of supplement and not premix form i.e. containing carriers, like the products in the present matter. Further, in the said case it was found by the investigation that the goods were first imported into Nepal from Germany under CTH 2936 only. I also find that it is nobody’s case that these products are intended use or fit for human consumption.
22.40 The applicant has also relied upon certain other case laws which support their contention. I further find that Hon’ble Supreme Court in the matter of M/s O.K. Play (India) Ltd. has laid down following three parameters for the classification of the goods:
(i) HSN along with explanatory notes provide a safe guide for interpretation of an entry;
(ii) Equal importance to be given to Rules of Interpretation of Excise Tariff;
(iii) Functional utility, design, shape and predominant usage have also got to be taken Into account while determining classification of an item.
22.41 I find that the Chapter Heading 2309 specifically mentions that this heading includes Preparations of a kind used in animal feeding, not elsewhere specified or included. The explanatory note which .is a safe guide for ascertaining the true meaning of any expression used in the Tariff Act. It explicitly states that Heading 2309 which specifies ‘Preparation for use in the making of complete feed or supplements’. Para II(C) covers premixes consisting of a vitamin along with a suitable carrier added to ensure homogenous dispersion and mixing of the vitamin in the compound feeds to which the preparations are added. Secondly, as per General Rules of Interpretation, classification the tariff such the First Sure kind used in processing v: essential char residues and – Dog or Cat f 230990 – Otha feed, Concern The products feed. The pr for the subject goods shall be determined according to the terms of the headings of Rule, the section notes and chapter notes. As per the Chapter Notes in Rule to Customs Tariff Act, 1975, Heading 2309 includes products of a animal feeding, not elsewhere specified or included, obtained by getable or animal materials to such an extent that they have lost the cteristics of the original material, other than vegetable waste, vegetable y-products of such processing. The CTH 2309 starts with CTI 23091000 od, put up for retail sale followed by 230990- Other. The Sub Heading r is further categorized by triple dash tariff item: Compounded animal rates for compound animal feed, Feeds for fish (prawn, etc.) and others. question are neither dog or cat food, nor are they prawn, shrimp, fish ducts in question are animal feed, therefore, the correct classification goods is 2309 9090 – Other.
22.42 Lastly, it is not disputed in the instant case, that the specific use of the impugned animal feed only. The applicant has submitted that the products in solely for the purpose of rendering them suitable for use in animal feed unfit for general use. The active ingredients present in the impugned pacifically contain suitable carriers of silica, gelatin, sugars and residue, for allowing the homogenous mixing in animal feed, by giving it acuter and pre-dominant use. The inclusion of the such carriers makes products suitable for specific use in animal feed only. This is also reflected in the technical details of the products and on its packaging labels.
goods is for question are and render it goods also fermentation a distinct cha the impugner reflected in th
22.43 The Hon’ble Supreme Court in the case of Atul Glass Industries (Pvt) Ltd. v. (25) E.L.T. 473 (S.C.)], held that for classification of a product, how a tidied by the class or section of people, dealing with or using the product applied when the statute itself does not contain any definition. It was metrical / common parlance would assume importance. The relevant portion of the decision is exacted below:
“8. T e test commonly applied in such cases is . How is the product identic ed by the class or section of people dealing with or using the produce t ? That is a test which is attracted whenever the statute does not co fain any definition. ***
It is a matte of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer le, he buys it because it performs a specific function for him. There association in the mind of the consumer between the article and the lies in his life. It is the functional character of the article which with its prim buys an artic is a mental a need it sup identifies it primarily th mirror, an a because the as a media of the article the mind. In the case of a glass mirror, the consumer recalls reflective function of the article more than anything else. It is a isle which reflects images. It is referred to as a glass mirror only word glass is descriptive of the mirror in that glass has been used for manufacturing the mirror. The basic or fundamental character lies in its being a mirror.”
22.40 Similarly, Hon’ble Supreme Court in the case of Commissioner of Central Excise Vs. Wockhardt Life Sciences Ltd. reported in 2012 (277) E.L.T. 299 (S.C.) has held that the functional utility and predominant usage of the commodity must be taken into account apart from understanding in common parlance to determine the correct classification of the product.
22. On the basis of the literature provided by the applicant, CTH HSN explanatory notes, Circulars, Case laws discussed above, I come to the conclusion that the subject goods contended by the applicant in the present submission i.e. LUTA.E 50, LUTA. 0A/D3 1000/200 PLUS, LUTAVIT A 1000 PLUS and LUTAVIT B2 SG 80 are vitamin premixes with carrier with a small quantity of added anti-oxidants and preservative solely to be used in animal feed. Accordingly, the abovementioned subject goods merit classification under Customs Tariff Heading 2309, more specifically under CTI 2309 9090 of the First Schedule of the Customs Tariff Act, 1975.
I rule accordingly.
(Prabhat K Rameshwaram)
Customs Authority for Advance Rulings, Mumbai
