Custom, Excise & Service Tax Tribunal
Avanti Feeds Ltd vs Cc Sea Ch - Iv on 11 March, 2025
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Customs Appeal Nos.41615 of 2015
(Arising out of Order-in-Appeal C. Cus. II No. 491/2015 dated 29.5.2015 passed by
the Commissioner of Customs (Appeals - II), Chennai)
M/s. Avanti Feeds Limited Appellant
G-2, Concorde Apartments
6-3-658 Somajiguda
Hyderabad - 500 082.
Vs.
Commissioner of Customs (Import) Respondent
Custom House
No. 60, Rajaji Salai
Chennai - 600001.
APPEARANCE:
Shri B.Venugopal, Advocate for the Appellant
Shri Anoop Singh, Authorized Representative for the Respondent
CORAM
Hon'ble Shri P. Dinesha, Member (Judicial)
Hon'ble Shri M. Ajit Kumar, Member (Technical)
FINAL ORDER NO. 40324/2025
Date of Hearing: 06.02.2025
Date of Decision: 11.03.2025
Per M. Ajit Kumar,
The issue involved is one related to the classification of 'Squid
Liver Powder'. Squid Liver Powder is a raw material used in the
manufacture of shrimp feed formulation and is derived from internal
organs of squid. The supplier in their website have stated that the
product is made from fresh by-product of squid and consists of squid
liver paste 50% and the well-fine soyabean meal 50%. While the
appellant claims the classification of the goods under Customs Tariff
Heading (CTH) 2301 2011, the same was reclassified by the
department under CTH 2309 9090 and differential duty was demanded
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accordingly. Aggrieved by the order of the lower authority, the
appellant has taken up the matter before the Commissioner (Appeals)
who vide Order in Appeal C. Cus. No. 491/2015 dated 29.5.2015
confirmed the order of the lower authority. Aggrieved by the impugned
order, the appellant is before the Tribunal.
2. We have heard Shri B.Venugopal, learned counsel for the
appellant and Shri Anoop Singh, Ld. Authorized Representative for the
respondent-department.
3.1 The learned counsel Shri B.Venugopal submitted that the issue
of classification of the impugned imported product viz., Squid Liver
Powder' has been decided by this Hon'ble Tribunal in their own case
vide Final Order Nos. 40465 to 40468/2023 dated 22.06.2023. The
said Final Order (No. 40465/2023) has been challenged by the
Appellant before the Hon'ble High Court of Madras in CMA No.
2639/2023 u/s 130 of the Customs Act, 1962 on various legal grounds
and is currently pending before the Hon'ble High Court. Under the
circumstances, he prayed to keep the proceedings under the present
appeal pending, until the CMA No. 2639/2023 is heard and disposed of
the Hon'ble High Court, in the interest of justice. He further prayed
that if the matter was being decided on merits they may be allowed to
plead a pure questions of law as stated in the decision of the Apex
Court in the case of National Thermal Power Co. Ltd., Vs. CIT, 1998
(99) ELT 200 (SC) and their appeal be allowed.
3.2 The Ld. Authorized Representative submitted that since the
appeal for the earlier period has already been decided in favour of
revenue, the appeal in this case may be dismissed.
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4. We have gone through the appeal and have heard both the
parties. We find that the appellant has raised the following issues;
(A) Request to keep the hearing and decision pending in the present
Appeal
(B) Imported product merit classification under CTH 2301 20 11 of
the Customs Tariff Act, 1975
(C) Imported product do not come within the ambit of CTH 2309 90
90 of the Customs Tariff Act, 1975
(D) As the goods are a mixture, it should be classified only by
supplying essential character as mandated under Rule 3(b).
We take up the issues sequentially;
5. As regards the appellants plea at issue (A) above, we find that
the Hon'ble Supreme Court in UNION TERRITORY OF LADAKH &
ORS. Vs JAMMU AND KASHMIR NATIONAL CONFERENCE & ANR
[CIVIL APPEAL No. 5707 OF 2023, Dated: 06/09/2023], has laid down
the position in law that, Courts will proceed to decide matters on the
basis of the law as it stands. It is not open, unless specifically directed
by the Apex Court, to await an outcome of a reference or a review
petition, as the case may be. We hence proceed to decide the matter
which would also be advantageous to the appellant as they have raised
an additional point of law.
6. As regards the issues at (B) and (C) above the matters have
been dealt with extensively in Final Order Nos. 40465 to 40468/2023,
dated: 22.06.2023. Relevant portion of which is reproduced below:-
"6. We have gone through the appeals and have heard the parties. We
find that the main issue under dispute is whether the imported goods i.e.
'squid liver powder' is classifiable under CTH 2309 as 'Preparations of a
kind used in animal feeding' as finalized by Revenue, or under CTH 2301
as 'Flours, meals and pellets, of meat or meat offal, of fish or of
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crustaceans, molluscs or other aquatic invertebrates, unfit for human
consumption; greaves', claimed by the appellants.
7. We find that for a better understanding of the issue, it would be
essential to extract relevant portion of the Customs Tariff entry pertaining
to 'squid liver powder' as referred to by both the parties to the dispute.
CHAPTER 23
Residues and waste from the food industries; prepared animal
fodder
NOTE :
Heading 2309 includes products of a kind used in animal feeding, not
elsewhere specified or included, obtained by processing vegetable
or animal materials to such an extent that they have lost the essential
characteristics of the original material, other than vegetable waste,
vegetable residues and by-products of such processing.
Sub-heading Note:
For the purposes of sub-heading 2306 41, the expression "low erucic
acid rape or colza seeds" means seeds as defined in sub-heading
Note 1 to Chapter 12.
Tariff Item Description of the goods Unit Rate of Duty
(1) (2) (3) (4) (5)
2301 Flours, meals and pellets, of meat or
meat offal, of fish or of crustaceans,
molluscs or other aquatic invertebrates,
unfit for human consumption; greaves
2301 10 - Flours, meals and pellets, of meat or meat
offal; greaves
2301 1010 --- Meat meals and pellets (including Kg. 30%
tankage)
2301 10 90 --- Other (including greaves) Kg. 30%
2301 20 - Flours, meals and pellets, of fish or of
crustaceans, molluscs or other aquatic
invertebrates
--- Fish meal, unfit for human consumption
2301 20 11 ---- In powder form Kg 30%
2301 20 19 ---- Other Kg. 30%
2301 20 90 ---- Other Kg. 30%
2309 Preparations of a kind used in animal feeding
2309 10 00 - Dog, or cat food, put up for retail sale Kg. 30%
2309 90 - Other
2309 90 10 --- Compounded animal feed Kg. 30%
2309 90 20 --- Concentrates for compound animal feed Kg. 30%
--- Feeds for fish (prawn etc.)
2309 90 31 ---- Prawn and shrimps feed Kg. 30%
2309 90 32 ---- Fish meal in powdered form Kg. 30%
2309 90 39 ---- Other Kg. 30%
2309 90 90 --- Other Kg. 30%
7.1 We find that M/s Avanti Feeds Ltd. were aggrieved of the fact that a
copy of the test report mentioned in their Order in Original was not given
to them at the Show Cause Notice stage. We hence discard the test report
and rely on the factual description given by the appellants of their imported
products.
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7.2 From the composition of the goods it is clear that 'squid liver powder'
consists of two major ingredients, one of animal (squid) origin and the
other of plant origin, with small quantities of other ingredients. The
appellants are of the opinion that CTH 2309 is intended for products which
are used for feeding the animals directly i.e. finished products. As per the
Order in Original, the website of the supplier describes 'squid liver powder'
as a high-quality feed ingredient for aqua feed (especially shrimp) and all
type diet for animals. The flours, meals and pellets of heading 2309 are
used mainly in animal feeding. Since these products and preparations are
used 'in' animal feeding they include in their imported form feed stuff that
cannot be consumed directly by animals and are for use in making /
manufacturing the final feed also. Hence the heading also covers feed
ingredients i.e. products which go into the manufacture of animal feeds
and need not be an end product in itself. There is nothing in the Chapter
Notes to suggest otherwise nor is there any exclusion removing such
products from the Chapter. Hence from a plain reading of the Tariff
Heading, 'squid liver powder' being a preparation used for aqua feed and
all type diet for animals, is rightly classifiable under CTH 2309.
7.3 We find that CTH 230120 preferred by the appellants covers 'flours,
meals and pellets, of fish or of crustaceans, molluscs or other aquatic
invertebrates'. The heading does not cover products containing
ingredients of plant origin. Since 'squid liver powder' contains a mix of
ingredients both of molluscs and plant origin, from a plain reading of the
heading, squid liver powder does not fall under the heading.
8. Both the appellants have referred to the HSN to further explain their
stand. Hence the relevant portion of the HSN is extracted below.
Preparations of a kind used in animal feeding.
(HSN)
Chapter 23
Residues and Waste from the food industries; prepared animal fodder
23.01 - Flours, meals and pellets of meat or meal offal, of fish or of
crustaceans, molluscs or other aquatic invertebrates, unfit for
human consumption; greaves.
2301.10 Flours, meals and pellets, of meat or meat offal; greaves
2301.20 Flours, meals and pellets, of fish or of crustaceans, molluscs
or other acquatic invertebrates
This heading covers:-
(1) Flours and meals, unfit for human consumption, obtained by
processing either the whole animal (including poultry, marine mammals, fish
or crustaceans, molluscs or other aquatic invertebrates) or animal products
(such as meat or meat offal) other than bones, horns, shells etc. These
products (obtained mainly from slaughter houses, floating factories which
process fishery products, canning or packing industries, etc.) are usually
steam-heated and pressed or treated with a solvent to removal oil and fat.
The resultant product is then dried and sterilized by prolonged heating and
finally ground.
The heading also covers the above products in the form of pellets (see the
General Explanatory Note to this Chapter)
The flours, meals and pellets of this heading are used mainly in animal
feeding, but may also be used for other purposes (e.g. as fertilizers)
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(2) Greaves, the membraneous tissues remaining after pig or other
animal fats have been rendered. They are used mainly in the preparation of
animal foods (e.g. dog biscuits) but they remain in the heading even if
suitable for human consumption.
************
23.09 - Preparations of a kind used in animal feeding 2309.10 - Dog or cat food, put up for retail sale 2309.90 - Other This heading 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 achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed); or (3) for use in making complete or supplementary feeds. The heading includes products of a kind used in animal feeding, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, for example, in the case of products obtained from vegetable materials, those which have been treated to such an extent that the characteristic cellular structure of the original vegetable material is no longer recognisable under a microscope.
(Emphasis added) (I) SWEETENED FORAGE ........
(II) OTHER PREPARATIONS (A) PREPARATIONS DESIGNED TO PROVIDE THE ANIMAL WITH ALL THE NUTRIENT ELEMENTS REQUIRED TO ENSURE A RATIONAL AND BALANCED DAILY DIET (COMPLETE FEEDS) The characteristic feature of these preparations is that they contain products from each of the three groups of nutrients described below :
(1) " Energy " nutrients, consisting of high-carbohydrate (high-calorie) substances such as starch, sugar, cellulose, and fats, which are " burned up " by the animal organism to produce the energy necessary for life and to attain the breeders' aims. Examples of such substances include cereals, half-sugar mangolds, tallow, straw. IV-2309-2 23.09 (2) " Body-building " protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not " burned up " by the animal organism but contribute to the formation of animal tissues and of the various animal products (milk, eggs, etc.). They consist mainly of proteins or minerals.
Examples of the protein-rich substances used for this purpose are seeds of leguminous vegetables, brewing dregs, oil-cake, dairy by-products.
The minerals serve mainly for building up bones and, in the case of poultry, making egg-shells. The most commonly used contain calcium, phosphorus, chlorine, sodium, potassium, iron, iodine, etc. (3) " Function " nutrients. These are substances which promote the assimilation of carbohydrates, proteins and minerals. They include vitamins, 7 trace elements and antibiotics. Lack or deficiency of these nutrients usually causes disorders.
The above three groups of nutrients meet the full food requirements of animals. The mixing and proportions depend upon the animal production in view.
(B) PREPARATIONS FOR SUPPLEMENTING (BALANCING) FARM-
PRODUCED FEED (FEED SUPPLEMENTS) .......
(C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE These preparations, known in trade as " premixes ", are, generally speaking, compound compositions consisting of a number of substances (sometimes called additives) the nature and proportions of which vary according to the animal production required. These substances 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 : vitamins or provitamins, amino-acids, antibiotics, coccidiostats, trace elements, emulsifiers, flavourings and appetisers, etc. (2) Those designed to preserve the feeding stuffs (particularly the fatty components) until consumption by the animal : stabilisers, 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, middlings, 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 nature 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 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 ".
.......
8.1 The appellants state that CTH 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 achieve a suitable daily diet by supplementing the basic farm- produced feed with organic or inorganic substances (supplementary feed); or 8 (3) for use in making complete or supplementary feeds.
That in order to fall under the third category the goods should be a 'pre- mix' that are added to complete feed or supplementary feed for specific purposes such as improving digestion, preservation or as carrier. We find from the above HSN notes that the heading 230990 covers preparations for used in making the complete feed or supplementary feed and need not be an end product in themselves. As per the notes 'this heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed for use in making complete or supplementary feeds'. Further as stated by the appellants squid liver powder contains certain proteins, peptides and amino acids in it. They are in line with the HSN description, as being composed consisting of a number of substances, sometimes called additives, the nature and proportion of which vary according to the animal production requirement. As stated by appellants, squid liver powder is used in shrimp feed formulation as an attractant. It is common knowledge that feeding is the main way for fish to obtain nutrition for the survival, growth and reproduction of fish/ shrimp etc. Attractants are added to the feed to improve not only the feed palatability thereby reducing wastage but also to increase feed intake resulting in fish growth, and are mainly used in captive fish farms. It hence ensures that the fish/shrimp make good use of the feeds and safeguard its health. Moreover, attractants have multiple benefits apart from attracting fish to the feed. Ingredients like proteins, peptides and amino acids, also found in squid liver powder, are known to improve the growth, activity of digestive enzymes, nutrient absorption and specific immunity. They aid the appetite of fish and help to provide the animal with a rational and balanced daily diet ensuring their health and growth. This being so apart from a plain reading of the Customs Tariff the classification of squid liver powder under 2309 also satisfies the relevant notes (A) and (C) of II 'Other Preparations' given in the HSN, extracted above. Hence squid liver powder merit classification under the CTH 2309. Since the product is described as being a high-quality feed ingredient for aqua feed and all type diet for animals, the product which is not for exclusive use for fish, prawn etc. has been correctly classified under CTH 23099090.
9. The appellants have stated that addition of soya bean to the extent of 40% does not detract from the fact that the product is recognized in the trade as squid liver powder. When it comes to classification of such mixtures, reliance should be placed on Rule 3(b) of General Rules of Interpretation of the Tariff (GRI) as the impugned goods are a mixture and it should be classified applying its essential character. We find that normally goods should be correctly classifiable by reference to Rule 1 alone. Only if results of this process are ambiguous and two or more Headings appear to be applicable, then Rule 3 need be applied. Hence Rule 3 of GIR shall be used only if classification under Rule 1 and 2 fail. The issue of essential character of the subject matter in question may be resorted to only if classification of a product under Rule 1 is impossible. We have earlier discussed that the squid liver powder was classifiable under CTH 2309 as 'preparations of a kind used in animal feeding' both by a plain reading of the Customs Tariff and with reference to the HSN. Hence the need for applying Rule 3(b) of GRI does not arise.
9.1 The appellant M/s Godrej Agrovet Ltd. have also stated that there cannot be a change in classification or assessment practice when 9 the impugned goods were earlier being classified under CTH 2301 in their case. On the contrary the appellant M/s Avanti Feeds Ltd. were of the opinion that the principles of res judicata do not apply to tax matters and that they cannot be prevented from canvassing the correct classification and that assessment under each Bill of Entry is a separate appealable order and cannot be taken as a precedent. We find that earlier assessment practice cannot be a substantive bar on rectifying a wrong classification. Such a reason cannot be used as a reason to continue a wrong classification even after it has been noticed by either of the sides. We find that the appellant M/s Godrej Agrovet Ltd have admitted in their submissions that they had filed BE No 543857 dated 19/06/2010 under CTH 23099010, which they claim was a mistake. Again, it is seen from the documents filed by them along with their appeal that in the earlier Bill of Entry No 467736 dated 23/03/2010 they have classified squid liver powder under CTH 23099010. The Learned Commissioner Appeals had held the appeal against this Bill of Entry to be time barred and the appellant has not challenged the same and the same has attained finality. Going by the appellants plea they would also be bound by their earlier declaration. But that is not so. As stated by the Hon'ble Apex court in the case of UOI (Railway Board) and Ors. Vs J.V. Subbaiah and Ors. [1996 (2) SCC 258], equality /precedent cannot be attracted in cases where wrong orders have been issued. Again, in Elson Machines Pvt. Ltd. Vs. Collector of Central Excise [1988 (38) ELT 571 (SC)] it was held by the Hon'ble Supreme Court that Excise Authorities were not estopped from taking a view different than in the approved classification list and that there can be no estoppel against law. We find that the lower authority has given a reasoned order for his decision and the classification has not been done in an arbitrary or capricious manner. Hence on its own this ground cannot be treated as valid for setting aside the order of the lower authority.
10. We now take up the various case laws submitted by both the appellants. M/s. Avanti Feeds Ltd. have referred to the following judgments in support of their stand that there is no estoppel from the appellant taking a different view from that in the approved classification list.
(a) Elson Machines Pvt. Ltd. Vs. Collector of Central Excise - 1988 (38) ELT 571 (SC)
(b) Madras Rubber Factory Ltd., Madras Vs. Superintendent of Central Excise, Madras and Others - 1986 (24) ELT 273 (Mad.)
(c) Plasmac Machine Mfg. Co. Pvt. Ltd. Vs. Collector of Central Excise - 1991 (51) ELT 161 (SC) They have further referred to the following decisions stating that test reports which were not given to the appellant up to the SCN stage cannot be relied upon in the Order in Original.
(a) Hindustan Fibres Ltd. Vs. CCE, Jaipur - 2009 (245) ELT 337 (Tri. De.)
(b) Bee-Am Chemicals Ltd. Vs. CCE, Raigad - 2004 (167) ELT 534 (Tri. Mum.)
(c) Essma Woollen Mills P. Ltd. Vs. CCE, Chandigarh - 2001 (134) ELT 262 (Tri. Del.) 10 As discussed in para 9.1 above, we agree with the legal position that equality / precedent cannot be attributed in cases where wrong orders have been issued. Wrong decisions taken earlier cannot be binding precedents as there is no estoppel against law. Further, we have also not relied upon the test report which has been disputed by the appellant as stated in our discussion above.
11. The learned counsel appearing for M/s. Godrej Agrovet Ltd. relied upon Boards Circular no 80/54/ 2018-GST dated 31/12/2018 regarding clarifications on GST rates and classification of goods, to state that HS Code 2309 would cover only such products which in the form supplied are capable of specific use as food supplements for animals and are not capable of any general use. Boards clarifications are not binding on Tribunals. These clarifications are given in the context of another law that is GST and are distinguished. They have further referred to the US Customs ruling No NY 186510 pertaining to 'Instant bait' with totally different ingredients. The said bait is dissimilar to the impugned product and bears no comparison and cannot even have a persuasive value. They have also referred to the decision of the Tribunal in the case of Zymonutrients Pvt. Ltd. Vs. Commissioner of Customs reported in 2020 (372) ELT 458 (Tri. Chennai) to state that Heading 2309 talks of preparation of a kind used in an animal feed and that by no stretch of imagination are the products imported by the appellant preparations of a kind for animal feed. The goods in question in the cited judgment pertains to yeast which is a single ingredient product covered under a specific heading and the decision is applicable to the peculiar facts of that case. The issue relating to squid liver powder being covered under 2309 has been discussed elaborately above. They have further relied upon the following decision of the Hon'ble Supreme Court and the Tribunal:-
(a) Hindustan Ferodo Ltd. Vs. CCE - 1997 (89) ELT 16 (SC)
(b) UOI Vs. Garware Nylons Ltd. - 1996 (87) ELT 12 (SC)
(c) Jai Kunkan Foods Vs. Commissioner of Customs - 2023 (4) TMI 1033
-CESTAT New Delhi to state that the onus of establishing that goods are classifiable under particular Tarif entry are upon Revenue. We find from the discussions above, that Revenue has discharged this duty effectively and that the discussions made in the impugned orders show the correct classification of goods under CTH 2309. They further relied upon the following judgments / decisions:-
(a) Marsons Fan Industries Vs. CCE - 2008 (225) ELT 334 (SC)
(b) Commissioner of Customs Vs. Viraj Impex Ltd. - 2017 (346) ELT 188 (Bom.)
(c) Viacom 18 Media Pvt. Ltd. Vs. State of Maharashtra - 2019 (22) GSTL 338 (Bom.)
(d) Popular Carbonic Pvt. Ltd. Vs. CCE - 2021 (8) TMI 240 - CESTAT Chennai
(e) Hi-Tech Corporation Vs. Commissioner of Customs - 2021 (8) TMI 1214 - CESTAT Chennai 11 in furtherance of their stand that department has accepted the classification for imports and a different stand cannot be taken for subsequent imports. The issue has been examined and discussed in para 9.1 above and we are unable to agree with the submissions made by the appellants in the light of the judgments of the Hon'ble Supreme Court cited therein.
12. In the light of the discussions above, we find that the classification of the 'Squid Liver Powder' has been correctly done under CTH 23099090 and hence the impugned orders are upheld. The appeals stand rejected. We hence order accordingly."
7. As regards the fresh point of law mentioned at (D) above, we admit and examine the same. It is the appellants contention that the essential issue in the present Appeal is a classification dispute with respect to the item under import. In such view of the matter, the General Rules of Interpretation of Tariff would have to be factored and taken into account for a correct decision. This cannot be done only with reference to Rule 1. Rule 3 should also be applied. As the goods are a mixture, it should be classified only by applying essential character as mandated under Rule 3(b). As per the Rules, classification of a product is required to be done based upon the major constituent of the product or which gives it the essential character. In this regard the Ld. Counsel referred to and relied on the following decisions:
UOI vs. Garware Nylons Ltd - 1996 (87) ELT 12 (S.C.) UOI vs. Century Spg. & Mfg Co. Ltd. 1985 (21) ELT 668 (Bom.) Atul Glass Industries Ltd. vs. CCE 1986 (25) ELT 473 (S.C.) 7.1 We find that this issue and judgments have been taken note of and the matter answered at para 9 of Final Order Nos. 40465 to 40468/2023, dated: 22.06.2023, reproduced above and does not merit a repetition. Moreover, the appellant has relied upon the HSN to state their case. The Hon'ble Supreme Court in Commissioner of Customs 12 and Central Excise, Amritsar (Punjab) Vs. D.L. Steels etc [2022 SCC OnLine SC 863], has held that, in the present times, given the widespread adoption of the Harmonised System by over 200 countries, it would be extremely difficult to deal with an international trade issue involving commodities, without adverting to the Harmonised System.
The Code is the bedrock of custom controls and procedures. Again the Hon'ble Supreme Court in its recent judgment dated 18.12.2024, in Commissioner of Central Excise, Salem Vs M/s. Madhan Agro Industries (India) Private Ltd., Civil Appeal No. 1766 of 2009, held that the HSN and the Explanatory Notes thereto, being the official interpretation of the Harmonized System at the international level, would be of binding guidance in understanding and giving effect to the headings in the First Schedule. Since the whole discussion and findings is based on the Customs Tariff read with the HSN the above averment of the appellant is without merit.
8. The appellants repeated plea, taken and answered earlier, that the final order dated 22.06.2023 is clearly beyond the original proceedings initiated under the demand notices. When the OIO and OIA relies only upon the Chemical Examiner report (which was not provided to the Appellant) and the earlier consignments cleared by the appellant under 2309 and on both these contentions the findings in the Final order are in favor of the Appellant, the said order ought not to have upheld the ΟΙΟ/ΟΙΑ on some extraneous basis, which were never part of the original or appellate proceedings below. We find that when the data as per the appellants own documents was made the bed rock of the discussion, they were not at a disadvantage and no fault could be found on the final discussion and decision on this score. Further 13 issue like squid liver powder being an attractant, was a fresh plea taken during the hearing and hence the discussions would obliviously be outside the file of the lower authority.
9. Having regard to the discussions above we do not find any fresh merit in the averments made by the appellant. As per the tenets of judicial precedent, we respectfully follow our earlier judgment in Final Order Nos. 40465 to 40468/2023, dated: 22.06.2023 and reject this appeal.
(Order pronounced in open court on 11.03.2025)
Sd/- Sd/-
(M. AJIT KUMAR) (P. DINESHA)
Member (Technical) Member (Judicial)
Rex