The Applicant is stated to be a manufacturer of confectionery products like cakes, rusks etc. Some of its products contain portions of cooked chicken, fish or egg. It seeks a ruling on whether the products are classifiable under HSN 1601. The AAR West Bengal held that the baked products as distinct food preparations will survive even if the chicken meat is excluded from the filling. They are, therefore, not food preparations based on chicken meat. Such bakers’ wares cannot, therefore, be classified under HSN 1601.
The Applicant submits in the light of decisions of CESTAT in Venky’s Fast Food [2000 (124) ELT 939 (Tri-Del), that it has so far been classifying the products under HSN 2106. The products contain more than 20% by weight of chicken meat. The products are preparations of meat instead of raw meat. They emerge as distinct food preparations through cooking when other ingredients are added and are separately identifiable as Chicken Kebab, Chicken Burger etc. The Applicant, therefore, argues that the products are classifiable under HSN 1601 instead of HSN 2106. The Applicant also submits a report on testing of the samples of its products to establish that the products contain more than 20% by weight chicken meat. National Collateral Management Services Ltd, which has a testing laboratory accredited by the National Accreditation Board for Testing and Calibration Laboratories, has done and prepared the test report.
The division bench comprising of Ms Susmita Bhattacharya, Joint Commissioner, CGST & CX and Mr Parthasarathi Dey, Senior Joint Commissioner, SGST held that the Application is admitted for the products that belong to the category of baked food preparations made of flour and contain chicken. The products that survive as bakers’ wares if the chicken meat is removed cannot be labelled food preparations based on meat. Chicken meat is used as a filling in most of the products where bread or baked flour is used as the base. It appears from the description of cooking annexed to the Application that bread or other baked product, prepared from a dough of flour, and the filling containing chicken meat are cooked separately. The baked products as distinct food preparations will survive even if the chicken meat is excluded from the filling. They are, therefore, not food preparations based on chicken meat. Such bakers’ wares cannot, therefore, be classified under HSN 1601. A few of the Applicant’s products would not survive as food preparation if the chicken meat were removed. Such products may be classified under HSN 1601, provided they contain more than 20% by weight of the meat.