Custom, Excise & Service Tax Tribunal
Jai Shree Rasayan Udyog Ltd vs C.C.E. Rohtak on 25 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. III Excise Appeal No. E/3689/2005-EX[DB] [Arising out of Order-In-Appeal No. 340/GRM/RTK/2005 dated 08.09.2005 passed by CCE, Gurgaon] For approval and signature: Honble Mr. G. Raghuram, President Honble Mr. R.K. Singh, Technical Member 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Jai Shree Rasayan Udyog Ltd Appellant Vs. C.C.E. Rohtak Respondent
Appearance:
Shri K. Anarudh, Advocate for the Appellants Ms. Shweta Bector, DR for the Respondents Coram:
Honble Mr. G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Date of Hearing: 25.09.2014 FINAL ORDER NO._53969/2014_ Per R.K. Singh:
Appeal has been filed against Order in Appeal No. 340/GRM/RTK/2005 dated 8.9.2005 which upheld the Order in Original No. 48-CE/2001 dated 14.09.2001 in terms of which 153 bags of Ruszyme G valued at Rs. 95,628/- were confiscated (and allowed to be redeemed on fine of Rs. 15,000/-) duty demand of Rs. 2,97,853/- for the financial years 1999-2000 and 2000-2001 was confirmed alongwith interest and mandatory equal penalty was imposed.
2. The issue in brief is classification of the said product namely, Ruszyme G. The adjudicating authority held that it was classifiable as plant growth regulator classifiable under tariff heading 38008.20 and leviable to duty while the appellants classified it as bio-fertilizer under heading 31.01 chargeable to nil rate of duty.
3. The appellants have contended that:
(i) The said product was understood by them as bio-fertilizer and they classified it accordingly and hence there was no suppression or willful misstatement.
(ii) Sea weed which is contained in the product is a natural fertilizer and the impugned product is an extract of the same.
(iii) Their case is covered by CESTAT judgment in case of Leeds Chem Vs. CCE Aurangabad 2001 (134) ELT (Tri-Del.) and commissioner Vs. Nothern Minerals Ltd. 2003 (156) ELT A161(SC).
4. The Ld. AR contended that the literature of the product published by appellants shows that it is plant growth regulator and not bio fertilizer and chemical examiners report supports the same view.
5. We have considered the facts and the submissions of both sides. The chemical examiners report relied upon by the adjudicating authority for classification is reproduced below:
With reference to para 2 of literature it is to inform that mentioned sea weed in it by name Ascofilm judosum do not exist, No living organisms by name Cytocoinins, Oxijin Pricursors, Enzymes, hydrolyzed Protein Complexes and Betains do also exist. However, if sea weed of botanical name Ascophyllum nodosum have been used in the preparation, then product u/r may contain Cytokinins, Auxin, Betaines, Amino acids, and Proteins. Cytokinin, Auxin are known Plant Hormones or Plant Growth Regulators. This sea weed is also reported to contain Cytokinin and Auxin then the preparation u/r is plant growth regulator, presence of Hormones have also been confirmed in preparation u/r in Para 3 of the forwarded literature.
Forwarded literature have no mention about presence of essential fertilizing elements i.e. N, P, & K (Nitrogen, Phosphorus & Potassium).
6. It is seen that the chemical examiner has not conducted any tests and has given an opinion based on appellants literature. We find that for similar product plantozyme (also containing cytokinin) CESTAT in case of Leeds Chem (Supra) had considered the issue of classification in great detail and held that the product is a biofertilizers and mere presence of small amounts of cytokinin would not detract from its character of bio fertilizer classifiable under Heading 31.01 9and not under Heading 38.08).
Similarly, another similar product known as Dhanzyme, CESTAT in the case of Nothern Minerals Vs. Comm. C. Excise (Supra) relied upon the judgment in the case of Leeds Chem (Susra) to come to same finding (holding it to be classifiable as bio fertilizer). Appeal against the said judgement was dismissed by Supreme Court on merit (2003 (156) ELT A161 (SC)).
7. Thus the issue of classification of the impugned product is no longer res integra and stands settled in favour of the appellants.
8. It is also pertinent to mention that the appellants had not cleared the goods clandestinely and claimed a classification they thought was appropriate and therefore, the allegation of willful misstatement/ suppression is not sustainable merely because Revenue considered that classification inappropriate. However, this point need not be laboured upon having been rendered inconsequential in view of paras 6&7 above.
9. In view of the foregoing the appeal is allowed and the impugned order is set aside.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) NSB