Customs, Excise and Gold Tribunal - Tamil Nadu
Cc vs C.P. Aquaculture (India) Pvt. Ltd. And ... on 19 March, 2007
Equivalent citations: 2007(120)ECC335, 2007ECR335(TRI.-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. The application filed by the department in appeal No. C/540/2006 is for stay of operation of the impugned order which is in favour of the respondents. In the remaining appeals, there are two applications each, one for similar stay and the other for condonation of delay of appeal. These appeals are late by only 8 days. After considering the explanation for this delay, and hearing both sides, we condone the delay. The remaining applications are for stay of operation of the impugned orders.
2. After considering the submissions of both sides, we find that the substantive issue raised by the Revenue in all the appeals is already covered against them by Final Order No. 165/2007 dt. 22.2.2007 passed by this Bench in Appeal No. C/476/06 (Commissioner of Customs, Chennai v. Avanthi Feeds Ltd.). Hence, after dismissing the stay applications, we take up the appeals for final disposal.
3. The respondents in these appeals had imported "Thai Fish Meal" from Singapore and filed Bills of Entry for its clearance claiming benefit of Notification No. 20/2006-Cus. dt. 1.3.2006 (Sl. No. 15). The goods were assessed accordingly and clearance allowed. Subsequently, however, department proposed to deny the benefit of the Notification to the importer, following certain audit objections. It was alleged that the item imported by the respondents was not 'finished aquatic feed' but only an input for its manufacture. This view of the department was upheld by the assessing authority and, accordingly, the assessments were finalized. The appeals preferred by the importers against these assessments were allowed by the appellate Commissioner. Hence these appeals of the Revenue.
4. A similar set of facts were considered in the case of Avanthi Feeds Ltd. (supra) and the benefit of the Notification was allowed to them. We think, it is enough now to reproduce paragraphs 3 to 5 of the order which we passed in that case, for the present purpose:
3. After hearing both sides and considering their submissions, we note that the short question arising for consideration is whether the goods imported by the respondents would answer the description given at Sl. No. 15 in the Table annexed to the above Notification. This description reads as under:
Sl. No. Chapter Heading Description Rate 15 Chapter 23 "Aquatic feed, poultry feed and cattle feed including grass, hay and straw, supplement and husk of pulses, concentrates and additives, wheat bran and de-oiled cake."
NIL Goods of the above description, falling under Chapter 23 of the First Schedule to the Customs Tariff Act, were exempted from payment of additional duty of customs leviable under Section 3 of the Customs Tariff Act, 1975, in terms of Sl. No. 15 in the Table annexed to the above Notification. It is not in dispute that the item imported by the respondents was falling under Chapter 23 ibid. The question to be looked into is whether it could be considered to be falling within the ambit of the above description of goods under the notification. According to learned SDR, who has reiterated the sole ground of appeal, the goods imported by the respondents was admittedly an input for the manufacture of shrimp feed and hence the same could, by no stretch of imagination, be accepted as shrimp feed itself. Both sides agree that shrimp feed is an 'aquatic feed'. It appears from the records that the assessee has been maintaining throughout that the fish meal imported by them was to be used as input in the manufacture of shrimp feed. However, their counsel would plead for the first time today that the fish meal imported by them was directly usable as feed for poultry and cattle. In the face of this claim, learned SDR would submit that such a claim is not liable to be accepted at this stage. It is her contention that the fish meal imported by the respondents would not be eligible for the benefit of the notification inasmuch as it is their consistent case that it was imported as an input for manufacture of shrimp feed. Learned SDR has referred to the definition of 'fish meal' found in S.B. Sarkar's 'Words & Phrases of Central Excise, Customs & Service Tax', We have perused this definition which says, fish meal is available as dried fish or as fish meal or powder. This information taken from 'S.B. Sarkar', however, goes in favour of the respondents only inasmuch as fish meal is found to be available as fish meal or powder. Learned Counsel has today claimed the subject goods to be finished feed for poultry and cattle. This claim seems to be supported by S.B. Sarkar. Learned Counsel has relied on HSN Notes under Heading 23, which say that "the flour, meals and pellets of this heading are used mainly in animal feeding, but may also be used for other purposes (e.g. as fertilizers)". S.B. Sarkar also indicates, by quoting from a publication of the Indian Council for Agricultural Research, that fish meal is also understood as manure. But all the authorities cited before us are unanimous on the point that fish meal is a feed for poultry and cattle. It appears from the description of goods given under the notification that even 'additives' for aquatic feed are also included within such description for the purpose of the benefit of the notification. In this view of the matter, even if the earlier stand of the respondents that they had imported the item as input for the manufacture of shrimp feed is taken into account, it would get covered within the scope of the term 'additives' occurring in the description of goods at Sl. No. 15 in the Table annexed to the Notification. If the present contention of learned Counsel to the effect that the imported item is directly usable as feed for poultry and cattle is considered, then also the item would qualify for the benefit of the notification on the strength of the authorities [HSN & S.B. Sarkar] cited before us.
4. Before parting with this discussion, we should advert to the ground raised in this appeal, which reads thus:
The item is only an input for the manufacture of shrimp feed and not the finished product and not even the concentrate and additives.
We have not found any material in support of this terse claim of the appellant. On the other hand, in respect of the expression 'additives' found in the above ground of the appeal, we have already taken a view in favour of the respondents.
5. In the result, the appeal fails and the same is dismissed.
5. In the result, the impugned orders, whereby the respondents received the benefit of Notification No. 20/2006-Cus. ibid., are sustained and these appeals are dismissed.
(Dictated and pronounced in open court)