Roasted/salted/roasted & salted Cashew nuts classifiable under HSN 2008.19.10

In re Shri Mohanan, M/s. Aswani Chips and Bakers (GST AAR Kerala)

1. Whether chips made from Jackfruit, Banana (both raw as well as ripe banana), Banana chips (masala), Potato, Tapioca, Chembu and Pavakka and sold without BRAND NAME are classifiable as NAMKEENS and are covered by HSN Code 2106.90.99 and taxable under Entry 101A of 1st Schedule of Central Tax (Rate) Notification 1/2017?

No. The Jackfruit Chips, Banana Chips, Potato Chips, Tapioca Chips, Chembu Chips and Pavakka Chips are classifiable under Customs Tariff Heading 2008.19.40 and is liable to GST at the rate of 12% [6% – CGST + 6% – SGST] as per Entry at SI No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.

2. Whether roasted and salted / salted / roasted preparations such as of Ground nuts, Cashew nut and other seeds are NAMKEENS and when sold without a brand name can they be classified under HSN 2106.90.99 and taxed under Entry 101A of Schedule 1 of Central Tax (Rate) Notification 1/2017?

No. Roasted / salted / roasted and salted Cashew nuts are classifiable under Customs Tariff Heading 2008.19.10 and roasted / salted / roasted and salted Ground nuts and other nuts are classifiable under Customs Tariff Heading 2008.19.20 and is liable to GST at the rate of 12% [6% – CGST + 6% – SGST] as per Entry at SI No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.

FULL TEXT OF ORDER OF AUTHORITY OF ADVANCE RULING, KERALA

The applicant is engaged in business of supply of goods such as Jackfruit Chips and Banana chips without brand name. The applicant also intends to deal in salted as well as masala chips made from Tapioca, Potato, Chembu and Pavakka (Bittergourd).

2. At the outset, the provisions of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as CGST Act) and the Kerala State Goods and Services Tax Act, 2017 (hereinafter referred to as KSGST Act) are same except for certain provisions. Accordingly, a reference hereinafter to the provisions of the CGST Act, Rules and the notifications issued there under shall include a reference to the corresponding provisions of the KSGST Act, Rules and the notifications issued there under.

3. The applicant requested for advance ruling on the following;

1. Whether chips made from Jackfruit, Banana (both raw as well as ripe banana), Banana chips (masala), Potato, Tapioca, Chembu and Pavakka and sold without BRAND NAME are classifiable as NAMKEENS and are covered by HSN Code 2106.90.99 and taxable under Entry 101A of 1st Schedule of Central Tax (Rate) notification 1/2017?

2. Whether roasted and salted / salted / roasted preparations such as of Ground nuts, Cashew nut and other seeds are NAMKEENS and when sold without a brand name can they be classified under HSN 2106.90.99 and taxed under Entry 101A of Schedule 1 of Central Tax (Rate) notification 1/2017?

4. Contentions of the Applicant:

4.1. The Jackfruit Chips and Banana Chips are sold without brand name. Jackfruit chips are made by frying the fruit in edible oil. Banana Chips are made by slicing raw / ripe bananas into thin round pieces and frying in edible oil. Salt and Turmeric are also applied. By adding masala fried banana masala chips are prepared. Thus Jackfruit Chips and Banana Chips are edible preparations and come under the category of savoury. Accordingly, the applicant is levying GST at the rate of 5% by classifying the commodities under Entry 101A of Schedule I of Central Tax (Rate) Notification 1/2017.

4.2. They intend to deal in salted and masala chips made from Tapioca, Potata, Chembu and Pavakka (Bittergourd). Tapioca and Potata are sliced into round pieces and fried in edible oil. Salt is applied at the time of frying. After frying it is soldas such or after mixing it with masala. In the case of Pavakka Chips the sliced pieces are washed thoroughly, mixed with dough and fried in edible oil. Chembu is also sliced in thin pieces and after washing is fried in edible oil. Salt is applied at this stage. Salted chips and masala chipS of Tapioca, Potata, Chembu, Pavakka are commonly understood as Namkeens. Roasted and salted / salted / roasted preparations made of Ground nuts, Cashew nuts and other seeds are commonly understood as Namkeens. They have to be classified as Namkeens in view of Supplementary Note No. 6 of Chapter 21 of the Customs Tariff Act. They reproduced the applicable entries in Customs Tariff Act and the Notification No. 01/2017 — CT (Rate) dated 28.06.2017 as follows;

4.3. IN RE: P.M. SANKARAN [KER/53/2019 Dated 21st June 2019] and KER/66/2019 dated SEPTEMBER 30, 2019 of this Honourable Authority, it is held that Jackfruit Chips and Banana Chips fall under HSN 2008.19.40 and have to be classified under Entry 40 of Schedule II of Notification 1/2017 and tax at 12% is liable to be paid. Relevant entries are reproduced below for easy reference;

4.4. The words “not elsewhere specified or included” is material as Supplementary Note No.6 of Chapter 21 stipulates that products now under consideration are covered by HSN 2106.90.99. HSN 2008 covers only those “fruit, 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 “. So, a product can be classified under HSN 2008 only if it is not classified under any other Chapter or subheading of Chapter 2008. Also, latter part of the description to Entry 40 of Schedule II makes it clear that it covers only Ground-nut, Cashew nut, other roasted nuts and seeds, SQUASH of Mango, Lemon, Orange, Pineapple or other fruits. As what is sold is not a “NUT” or “SQUASH” of any fruit, this entry is not attracted. Roasted / roasted and salted / salted preparations made out of ground nuts, cashew nut and other seeds are commonly understood as NAMKEENs. Also, salted chips and masala chips of Tapioca, Potato, Chembu and Pavakka are also commonly understood as NAMKEENS. They have to be classified as NAMKEENS in view of Supplementary Note No.6 of Chapter 21 of Customs Tariff Act. Note No.1 of Chapter 20 states that the chapter does not cover vegetables, fruit or nuts, prepared or preserved by the processes specified in Chapter 7, 8 or 11. Banana and jackfruit are classified under Chapter 8 of Customs Tariff Act, with HSN Code 0803 and 0810.90.90 respectively. So, chips are not covered by HSN 2008 and hence do not fall under Entry 40 of Schedule II of Central Tax (Rate) Notification 1/2017. Entry 2008 19 40 of Customs Tariff Act refers to :’Other roasted and fried vegetable products”. Banana and Jackfruit being not vegetables, its chips cannot be classified under this HSN.

4.5. Further, the Entry in Customs Tariff Act uses the words “roasted and fried”. So, it is a cumulative condition. Banana Chips and Jack Fruit Chips are made by frying banana/ jack fruit in edible oil. Being fruits and being not “ROASTED AND FRIED”, these cannot be classified under 2008.19.40. In any case, banana and jack fruit are covered by HSN Code 0803 and 0810.90.90 respectively and on this primary ground they cannot be classified under HSN 2008. Advance Ruling IN RE: P.M. SANKARAN [KER/53/2019 Dated 21st June 2019] ruled that Baked Chips come under HSN 2008 19 40 and taxable at 12% as per Entry 40 of 2^nd Schedule. [Notification No.1/2017/CT (Rate) dated 28.06.2017 & SRO.No.360/2017]. “From the Ruling, it appears that the applicant himself had conceded that banana chips supplied by him were “baked chips”. The Ruling is on the basis of ingredients and classification reported by the applicant and not on an analysis of the products.

4.6. Further, in P. BASHEER Vs. STATE Of KERALA [1993] 91 STC (291) it was held by Honourable High Court of Kerala that the products such as banana chips, tapioca chips, murukku, pakkavada, etc are fried food articles. Relevant portion of the judgment is reproduced below for easy reference;

“7 We are of the view that the approach and conclusion of the Sales Tax Appellate Tribunal is erroneous in law. It is now well-settled that “bakery products” being a word of everyday use, “must be construed in its popular sense, meaning that sense which people conversant with the subject matter with which the statute is dealing would attribute, to it and it is to be construed as understood in common parlance”. The words “bakery products” should be understood in their natural, ordinary or popular sense and the meaning which they have in relation to the subject-matter with reference to which they have been used in the statute. They are well-known words of common usage. From the earliest decision of the Supreme Court in Ramavatar Budhaiprasad Vs Assistant Sales Tax Officer [1961] 12 STC 286 (SC); AIR 1961 SC 1325 the matter has been exhaustively considered by the Supreme Court in various decisions. The latest decision on the subject is Oswal Agro Mills Ltd Vs Collector of Central Excise JT (1993) 3 SC 260. Persons accustomed with bakery and purchasing, “its products” would only understand the words to mean “only those goods which are ordinarily, baked in a bakery”. If certain dealers in bakery products make jilabi, halve, gulabjamun and fried food articles such as banana chips, tapioca chips, murukku, pakkavada, etc, it will only show that making of such goods is their individual choice or preference or taste. It is also a matter of common knowledge that modern marketing has many dimensions. For convenience of the customers, certain bakeries may sell pickles, pappadom or even stationery articles. They are goods made or sold out of individual choice or taste probably to cater to their ()articular customers as part of their business method or marketing method. But, these Isolated or individual choices or taste for marketing particular goods will not and cannot render such goods as one covered by the words “bakery products”.”

“8. We are of the view that the Appellate Tribunal was in error in holding that the words “bakery products” will take within its fold anything dealt with or marketed or connected with the bakery. In order to say that particular goods are covered by the said word, those goods should be understood in their natural, ordinary or common parlance as bakery goods. So viewed, we are of the opinion that the mere fact that banana chips, tapioca chips, murukku, achappam, pakkavada and mixture were sold or marketed by the dealer, who is really a baker, cannot be covered by the entry “bakery products” within the meaning of those words as occurring in the Kerala General Sales Tax Act. This is so especially in the context and collocation of words occurring in the First Schedule to the Kerala General Sales Tax Act.”

4.7. The ADVANCE RULING NO. KER/66/2019 dated SEPTEMBER 30, 2019, was also a case where applicant himself had raised the query whether Banana Chips, Chakka Chips, Cheema Chakka Chips, Chembu Chips, Kappa Chips, Sharkaravaratty, KovakkaiVattal and PavakkaiVattal are classifiable under HSN Code 2008 19 40 – Other roasted and fried vegetable products and is liable to GST at the rate of 12% as per SI.No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate), dated 28.06.2017. This query was answered by the Authority for Advance Ruling in favour of the applicant. “Applicant had submitted a list of commodities as Namkeen items. The query raised was whether the “Namkeen Items” – Achappam, Avalose Podi, Cheeda, Diamond Cuts (Hot), Kuzhalappam, Murukku and Thatta are classifiable under HSN Code 2106 90 and is liable to GST at the rate of 12% as per SI. No. 46 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017 for those put up in unit container and, (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available. The rate of GST is 5% as per SI.No. 101A of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017 for those other than put up in unit container and (a) bearing a registered brand name; or (b) bearing a brand name on which an actionable claim or enforceable right in a court of law is available. In this Ruling, the issue whether the products Chakka Chips, Cheema Chakka Chips, Chembu Chips, Kappa Chips, Sharkara Varatty, Kovakkai Vattal and Pavakkai Vattal are NAMKEEN OR NOT was not at all raised or considered.

4.8. The term NAMKEEN is not defined under the CGST Act. So, common parlance test has to be applied. In common / commercial parlance, NAMKEEN means SAVOURY SNACK that is ready to eat and is a food product prepared by applying salt, masala and the like. The DICTIONARY MEANING of NAMKEEN: https://www.lexio.com/definition/namkeen – NOUN namkeen, namkeens — Indian – A small savoury snack or dish – Origin from Urdu namkin ‘salty or savoury food’, from Persian.

4.9. The Hon’ble CESTAT, New Delhi has observed in Paragraph 8 of its order reported as PEPSICO INDIA HOLDINGS PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, CHANDIGARH-I, [2015 (318) ELT 278 (Tri. ­Del.)] that salted food preparations are “namkeen”.

4.10. In Para 3.1.1 of Chapter 3 of FOOD SAFETY AND STANDARDS (FOOD PRODUCTS STANDARDS AND FOOD ADDITIVES) REGULATIONS, 2011, it is stated that that banana chips and similar fried products such as Chiwda, Bhujia, Dalmoth, Kadubale, Kharaboondi, Spiced and fried dais, sold by any name are traditional foods ie., Snacks of Savouries (Fried Products).

5. CONTENTIONS OF THE JURISDICTIONAL OFFICER:

5.1. The Jurisdictional Officer submitted that Chapter 20 covers ‘Preparations of vegetables, fruit, nuts or other parts of plants’. As per Explanatory Notes to Chapter 20, it does not cover vegetables, fruit or nuts prepared or preserved by the processes specified in Chapter 7, 8 or 11. It is seen that these processes in Chapter 7, 8, or 11 are freezing, steaming, boiling, drying, provisionally preserving and milling. Therefore, any edible part of plant which is prepared or preserved by any other process than these is classifiable under Chapter 20. The banana is sliced, fried and the flavours added. But the essential nature of the product is still the same. As long as the essential nature is retained, the edible parts of plants are classifiable under CTH 2008. [In re: Gourmet Popcornica LLP [TS-491-AAR-2020-NT-Tamil Nadu] [2020 (43) GSTL 112 (AAR-GST-TN)] Chips are nothing but an edible part of the plant prepared with salt and oil. Raw banana is also a vegetable and after going through the process of slicing and frying it does not cease to be a vegetable. The Potato, Tapioca, Chembu and Pavakka are sliced, fried and the flavours added. The essential nature of the above products is still the same. Frying and roasting are two popular cooking methods that both use high heat. It would not be right to conclude that both the conditions are to be cumulatively satisfied for classifying a product under the HSN 2008.19.40. Therefore, it is appropriate to classify the products; Jackfruit Chips, Banana Chips, Tapioca Chips, Potata Chips, Chembu Chips and Pavakka Chips under the HSN Code 2008.19.40. There is a specific reference to the products roasted and salted / roasted preparations such as of Groundnuts, Cashew nut and other seeds in the Chapter Heading and the basic nature of the product remains the same even after processing the same with salt and other flavours and hence they are also classifiable under CTH 2008.

6. PERSONAL HEARING:

The applicant was granted opportunity for personal hearing on 06.01.2021 by virtual mode. Shri. C.Seshadrinadan, CA Authorised Representative of the applicant attended the personal hearing. He reiterated the contentions made in the application and also submitted a Hearing Note summarising the submissions made in the application. Since we have already extracted in detail all the contentions raised by the applicant in the application the contents of the argument note is not reproduced to avoid repetition.

7. DISCUSSION AND CONCLUSION:

7.1. The matter was examined in detail. The issue to be determined is the classification and rate of tax of Jackfruit Chips, Banana Chips, Tapoica Chips, Potato Chips, Chembu Chips, Pavakka Chips and roasted / salted / roasted and salted preparations of Ground nuts, Cashew nut and other seeds supplied / to be supplied by the applicant. The contention of the applicant is that all the products fall under the category of “Namkeens” and hence is appropriately classifiable under Customs Tariff Heading 2106 90 and is liable to GST at the rate of 5 % as per entry at SI No. 101A of Schedule I of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.

7.2. Chapter 21 of the Customs Tariff covers “Miscellaneous edible preparations”. The Heading 2106 of the Chapter 21 covers food preparations not elsewhere specified or included. Those food preparations not specified or included elsewhere in the tariff being preparations for use either directly or after processing for human consumption are to be classified under this head. Therefore, it is evident that the entry is a residuary entry in respect of edible preparations and hence the edible preparations shall be classified under this entry only if the same are not classifiable under any of the other specific entries for edible preparations.

7.3. The Explanation appended to the Notification No.01/2017 Central Tax (Rate) dated 28.06.2017 reads as follows;

“Explanation:-

(i) In this Schedule, tariff item, heading, sub-heading and Chapter shall mean respectively a tariff item, heading, sub-heading and Chapter as specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975).

(ii) The rules for the interpretation of the First Schedule to the said Customs Tariff Act, 1975, including the Section and Chapter Notes and the General Explanatory Notes of the First Schedule shall, so far as may be, apply to the interpretation of above table.”

7.4. In view of the above, the rules for interpretation of the First Schedule of the Customs Tariff Act, 1975 including the Section and Chapter Notes and the General Explanatory Notes are applicable for interpretation of the GST Tariff / Rate Schedule. The General Rules for Interpretation of the First Schedule to the Customs Tariff Act, 1975 are as follows;

Rule 1: The titles of Sections, Chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions;

Rule 2: (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled.

(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

Rule 3: When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

Rule 4: Goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.

7.5. Chapter 20 of Customs Tariff specifically covers ‘Preparations of vegetables, fruits, nuts or other parts of plants. As per Chapter Note 1 (a) to Chapter 20, the Chapter does not cover vegetables, fruits or nuts prepared or preserved by the processes specified in Chapter 7, 8 or 11. Therefore, all the vegetable, fruit or nut products or preparations made other than by the processes specified in Chapters 7, 8 or 11 are included in the Chapter 20. The processes specified in Chapters 7, 8 or 11 mainly include freezing, steaming, boiling, drying, provisionally preserving and milling. Therefore, any vegetable, fruit, nut or edible parts of plant which is prepared or preserved by any other process than these are liable to be classified under Chapter 20. Chapter Heading 2008 of the Customs Tariff covers all roasted and fried vegetable products. Frying and roasting are two popular cooking methods that both use high temperature. It is not necessary that both the conditions are to be cumulatively satisfied for classifying a product under the category of roasted and fried products. When according to chapter notes and description of tariff items the products are classifiable under specific headings of Chapter 20 they cannot be classified under Heading 2106 as food preparations not elsewhere specified or included.

7.6. Accordingly, applying the principles of interpretation in Rule 2 of the General Rules for Interpretation of the First Schedule to the Customs Tariff Act, 1975 the Jackfruit Chips, Banana Chips, Tapoica Chips, Potato Chips, Chembu Chips and Pavakka Chips (Bittergourd) (Whether salted/ masala or otherwise) are classifiable under Tariff Heading 2008 19 40 of the Customs Tariff Act, 1975. Regarding classification of roasted /salted / roasted and salted Cashew nuts, Ground nuts and other nuts there are specific headings under Chapter 20 that covers the products. Accordingly, roasted /salted / roasted and salted Cashew nuts are classifiable under Tariff Heading 2008 19 10, and other roasted /salted / roasted and salted nuts and seeds are classifiable under 2008 19 20 of the Customs Tariff Act, 1975.

7.7. Having come to the conclusion that the products are classifiable under different Tariff Items of Heading 2008 of Chapter 20 of the Customs Tariff Act, 1975 we proceed to determine the rate of GST applicable on the products. The entry at SI No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017reads as follows;

On a plain reading of the above entry it is evident that all the products that fall under Chapter Heading 2008 of the Customs Tariff Act, 1975 attract GST at the rate of 12 [6% CGST + 6% SGST].

In view of the observations as above, the following rulings are issued;

RULING

1. Whether chips made from Jackfruit, Banana (both raw as well as ripe banana), Banana chips (masala), Potato, Tapioca, Chembu and Pavakka and sold without BRAND NAME are classifiable as NAMKEENS and are covered by HSN Code 2106.90.99 and taxable under Entry 101A of 1st Schedule of Central Tax (Rate) Notification 1/2017?

No. The Jackfruit Chips, Banana Chips, Potato Chips, Tapioca Chips, Chembu Chips and Pavakka Chips are classifiable under Customs Tariff Heading 2008.19.40 and is liable to GST at the rate of 12% [6% – CGST + 6% – SGST] as per Entry at SI No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.

2. Whether roasted and salted / salted / roasted preparations such as of Ground nuts, Cashew nut and other seeds are NAMKEENS and when sold without a brand name can they be classified under HSN 2106.90.99 and taxed under Entry 101A of Schedule 1 of Central Tax (Rate) Notification 1/2017?

No. Roasted / salted / roasted and salted Cashew nuts are classifiable under Customs Tariff Heading 2008.19.10 and roasted / salted / roasted and salted Ground nuts and other nuts are classifiable under Customs Tariff Heading 2008.19.20 and is liable to GST at the rate of 12% [6% – CGST + 6% – SGST] as per Entry at SI No. 40 of Schedule II of Notification No.01/2017 Central Tax (Rate) dated 28.06.2017.