Page 196 - GSTL_14th May 2020_Vol 36_Part 2

298 GST LAW TIMES [ Vol. 36
Company, in his affidavit, had categorically clarified that total orange juice con-
tent in ‘Fanta Fruity Orange’ is 10.5% of the total beverage and this forms the
base of the beverage, however, the GAAR ignored this aspect of the affidavit in
its impugned ruling. It is further submitted that the appellant submitted certifi-
cates from eminent persons viz. Dr. Lambert Rodruigues, Former Reader in Food
Technology, Food and Fermentation Technology Department, Institute of Chem-
ical Technology (ICT), University of Mumbai and Dr. Madhukar Bhotmange of
Laxminarayan Institute of Technology, Nagpur University, however, the GAAR
not only failed to appreciate these certificates, but also failed to discuss these in
the impugned ruling.
7.4 The appellant relied upon the decision of CESTAT in the case of
CCE, Bhopal v. Parle Agro Pvt. Ltd. [2008 (226) E.L.T. 194 (Tri.)] affirmed by the
Hon’ble Supreme Court [2010 (254) E.L.T. A13 (S.C.)] and judgment of Parle Agro
(P) Ltd. v. Commissioner of Commercial Taxes, Trivandrum [2017 (352) E.L.T. 113
(S.C.)].
7.5 The appellant also submitted that the Additional Commissioner,
Central Tax & Central Excise, Vadodara-I vide letter dated 15-12-2018 to the
GAAR opined that ‘Fanta Fruity Orange’ is classifiable under Schedule-II of No-
tification No. 1/2017-C.T. (Rate), dated 28-6-2017 (as amended) and attracts
CGST of 6%.
7.6 As regards the conclusion of the GAAR that Tariff Item 2202 99 20
will not cover drinks made from fruit juice concentrates, the appellant has sub-
mitted that as long as beverages are ‘based’ on fruit juices and such fruit juices
impart the essential character to the beverage, they will continue to fall under
Tariff Item No. 2202 99 20 as a ‘fruit pulp or fruit juice based drink’, even though
they are produced from fruit juice concentrates. The appellant submitted that
frozen Orange juice is specifically classified under Tariff Item No. 2009 11 00
which includes Orange juice concentrate within its ambit. Therefore, ‘fruit juice
based drinks’ under Tariff Item No. 2202 90 20 will also include ‘fruit juice con-
centrates based drinks’ within its ambit. The appellant also referred to Explana-
tory Notes to the Harmonized Commodity Description and Coding system of
Chapter Heading 20.09.
7.7 The appellant has further submitted that in classification disputes, a
specific entry is to be preferred over a general entry. Therefore, when the Cus-
toms Tariff Act, 1975 provides for a specific Tariff Entry No. 2202 99 20 for ‘fruit
pulp and fruit juice based drinks’, there is no need to place reliance on the resid-
uary entry for classification of a product, if such entry is self-sufficient to classify
a particular product. The appellant also referred to Rule 3(a) of the General Rules
for Interpretation of the Customs Tariff Act, 1975.
7.8 The appellant has submitted that the product ‘Fanta Fruity Orange’
satisfies the common parlance test inasmuch as its label reads ‘FANTA FRUITY
ORANGE WITH FRUIT JUICE’ and the label clearly also specifies that
“ORANGE JUICE CONTENT IN THE BEVERAGE IS 10.5%. CONTAINS
FRUIT”. The appellant has further submitted that the GAAR has held that even if
the ‘common parlance test’ is applied, the industry refers the ‘fruit pulp or fruit
juice based drink’ differently from the ‘fruit juice concentrate based drink’ and
therefore, the product would not fall under Tariff Item No. 2202 99 20, however,
the GAAR has not led in any evidence to substantiate its bald claim that industry
refers to fruit juices and fruit concentrates differently.

GST LAW TIMES  14th May 2020  196