Custom, Excise & Service Tax Tribunal
Godrej Agrovet Ltd vs Commissioner,Central Goods And ... on 8 September, 2023
CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, MUMBAI
REGIONAL BENCH - COURT NO. I
Excise Appeal No. 86935 of 2014
(Arising out of Order-in-Appeal No. PUN-EXCUS-002-APPL-198-13-14 dated
28.02.2014 passed by the Commissioner of Central Excise (Appeals), Pune-
II)
M/s Godrej Agrovet Ltd. .... Appellant
E-24, MIDC, Lote Parshuram,
Taluka - Khed, Dist. Ratnagiri
Maharashtra - 415 612.
Versus
Commissioner of Central Excise, Kolhapur .... Respondent
1079/2 KH, Vasanat Plaza, Rajaram Road, Near Bagal Chowk, Kolhapur - 416 001 Appearance:
Ms. Payal Nahar, Advocate for the Appellant Shri P.K. Acharya, Authorized Representative for the Respondent CORAM:
HON'BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) HON'BLE MR. M.M. PARTHIBAN, MEMBER (TECHNICAL) FINAL ORDER NO. A/86351/2023 Date of Hearing: 08.09.2023 Date of Decision: 08.09.2023 Per: S.K. Mohanty The issue involved in the present case is, whether the disputed product i.e., "Zymegold Plus Granules" should be classifiable under Chapter 31 of the Central Excise Tariff Act, 1985 as 'Fertilizer', claimed by the appellant; or under Chapter 38 as 'Plant Growth Regulator', claimed by the department.
2. In support of classification of the disputed product under Chapter 38 ibid, the department had concluded that the disputed products are not covered as an organic fertilizer under Fertilizer Control Order, 1985 and that the disputed product is a 'separate chemically defined compound' and covered by Chapter Note 1(b) of 2 E/86935/2014 Chapter 31 and therefore, appropriately classifiable under Chapter 38 ibid. On appeal against the adjudication order dated 30.11.2012, the learned Commissioner (Appeals) vide the impugned order dated 28.02.2014, has held that the disputed product is a mixture of inputs which are organic and inorganic in nature and not a separate chemically defined compound. He has further held that the disputed products contain N, P and K (i.e., Nitrogen, Prosperous and Potassium), but in minuscule quantity and hence, the product does not give essential characteristics of fertilizer. It has further been held that the disputed product is having nutrients of seaweed extract, which is essentially having plant growth hormone like auxins and cytokinins.
3. Feeling aggrieved with the impugned order, in so far as it has upheld the classification under Chapter 38 ibid, the appellant has preferred this appeal before the Tribunal.
4. Heard both sides and examined the case records.
5. We find that the issue arising out of the present dispute is no more res integra in view of the Final Order No. A/85661 - 85667/2023 dated 03.05.2023 passed by this Tribunal in the case of the appellant itself, for the earlier period. In the said order the Tribunal has held that the product in question i.e., Zymegold Plus Granules are appropriately classifiable under Chapter 31 and not as Plant Growth Regulator (PGR) under Chapter 38. The relevant paragraphs in the said order are extracted herein below:
"13. A strong reason which wade into the mind of learned commissioner while passing the impugned order is the order passed by his predecessor in appellant's own cases on identical issue for the earlier period but we are afraid that it cannot be accepted, as the Tribunal in appellant's own case for the earlier period vide its order dated 29.7.2022 has allowed the Appeals filed by them for the period November, 2006 to June, 2011 and held that the product Zymegold Plus is a fertilizer and we see no reason to differ with the same as the department has failed to produce any document to show that the same has beenchallenged in appeal anywhere by the department or that any stay of the said order has been obtained by the department. The reasoning given by the Tribunal for Zymegold 3 E/86935/2014 Plus is equally applicable for Dripzyme also as it also contains seaweed extract based product alongwith various other nutrients. It contains soluble like seaweed extracts, proteins, carbohydrates, inorganic salts and other inherent nutrients contained in the product of vegetable origin along with substantial portion of adjuvant and aqueous diluents. The appellant had also placed on record the test report on analysis of sample of Dripzyme issued by SGS India Pvt. Ltd.- a laboratory which also supports the claim of the appellant that it supplies nutrients whereas the department has failed to produce any test report to the contrary.
14. In yet another decision dated 6.11.2018 in the matter of Bahar Agrochem & Feeds Ltd.(supra) also the Tribunal has held that since the product Zymegold contains nitrogen and chlorine therefore is suffice to characterize the product as fertilizer. In arriving at the conclusion therein the Tribunal also relied upon its order dated 31.5.2018 in the matter of Aries Agri-vet Industries Ltd. (supra). We have also noticed that the department has taken resort to the definition of 'fertilizer' as provided in Fertilizer Control Order, 1985 for changing the classification which, according to us, could not have been done as the definition provided in other statutes, totally unrelated to statute in issue, cannot be made the basis for changing the classification. If the appellants are not complying with or are in violation of any provision of the said order, then it is for the authority mentioned therein to take necessary steps but on that basis the classification cannot be changed at all as the Excise Act is a complete code in itself and the authorities herein have to act within the four corners of the said statute.
15. In view of the discussions made in the preceding paragraphs and particularly the decision of the Tribunal inappellant's own case, we are of the considered view that the impugned order is liable to be set aside as the products in issue are fertilizers and therefore the appellants have rightly classified their products. The appeals are accordingly allowed with consequential relief, if any, as per law."
6. In view of the fact that the issue with regard to the disputed product is no more open for any debate, as per the above referred order passed by the Tribunal in the case of the appellant itself, for the earlier period, we donot find any reason to accept the classification made by the department under Chapter 38 ibid. Since, the product in dispute is rightly classifiable under Chapter 31 as 4 E/86935/2014 Fertilizer, we do not find any substance in the impugned order, insofar it has rejected the appeal filed by the appellant.
7. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant.
(Operative portion of the order pronounced in open court) (S.K. Mohanty) Member (Judicial) (M.M. Parthiban) Member (Technical) Sinha