Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs vs M/S. Penshibao Wang Pvt. Ltd on 8 May, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: C/20880/2016-DB [Arising out of Order-in-Appeal No. 154/2016-CE dated 09.03.2016 passed by Commissioner of Customs (Appeals), Bangalore.] The Commissioner of Customs Bangalore. Appellant(s) Versus M/s. Penshibao Wang Pvt. Ltd. Respondent(s)
Appearance:
Dr. Ezhilmathi, AR For the Appellant Mr. S. Jaikumar, Advocate For the Respondent Date of Hearing: 24/04/2017 Date of Decision: 08/05/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER HON'BLE SHRI V. PADMANABHAN, TECHNICAL MEMBER Final Order No. 20646_/ 2017 Per : V. PADMANABHAN This appeal is filed by Revenue against the Order-in-Appeal dated 9.3.2016. The respondent imported goods described as seaweed fertilizer (liquid), seawinner, and seaweed fertilizer (flakes). They filed bills of entry and claimed classification under CTH 3101.00.99 attracting BCD @ 7.5% in terms of Notification No.12/2012-Cus. dated 17.3.2012 (Sl. No.196) and exemption from payment of CVD and SAD vide Notification No.21/2012-Cus. dated 17.3.2012. The department classified the goods under CTH 3824.90.90 at the level of the original authority. This order was challenged before the Commissioner (A) seeking classification under 3101.00.99. The Commissioner (A) in the impugned order classified the goods as sought by the respondent. Aggrieved by the impugned order Revenue has filed the present appeal.
2. With the above background, we heard Dr. Ezhilmathi, learned DR for the Revenue and Shri S. Jaikumar, learned advocate for the respondent.
3. In the appeal filed by Revenue, they had agitated that from the test reports of the samples drawn from the imported consignments, the arsenic content was found to be 44.49 ppm in seaweed extract. Revenue has further submitted that in terms of the Fertilizer Control Order (FCO), 1985, the maximum arsenic content is 10 mg/kg (ppm). Since the imported goods contain arsenic at levels much beyond the limits laid down by FCO, Revenue has submitted that it should be classified as hazardous waste and should not be allowed for clearances and use as fertilizer. Because the goods are in the nature of hazardous waste, Revenue has contended that it merits classification under 3824.90.36.
4. Learned counsel for the respondent supported the impugned order. He submitted that the issue pertains to classification of imported goods and there is no proposal under consideration for classifying the same as hazardous waste. He also submitted that the Commissioner of Customs vide his Order-in-Original No.6./2016 dated 7.1.2016 in respect of the same product imported by them previously has relied upon the report dated 5.8.2015 issued by Ministry of Environment and Forests and has proposed classification as hazardous waste and held that the goods cannot be cleared for human consumption as it is unfit for use as fertilizer in view of the high sodium and arsenic content. However, he added that such a view was taken on the basis of certificate issued from Ministry of Environment and Forest dated 5.8.2015 in which it has been stated that seaweed fertilizer/seaweed extract are unfit for soil application if the arsenic content is more than 50 mg/kg which is above the permissible limit. In the present case, he has argued that the arsenic content is less than the permissible limit as above and hence the imports do not merit to be classified as hazardous waste.
5. The Commissioner (A) in the impugned order has classified the imported goods under 3105.90.90 as fertilizer. The reasoning adopted by the learned Commissioner (A) is on the basis of the report of testing of the samples of imported consignment by M/s. Shiva Analytical India Pvt. Ltd. The test reports have confirmed that the imported goods were without toxic elements like mercury, silica, manganese, lead, arsenic, etc. and the report further confirmed the presence of fertilizing elements such as nitrogen, potassium and phosphorous. Since the imported goods comprise of fertilizing elements like nitrogen, potassium, phosphorous, the learned Commissioner (A) has ordered for classification of the same under CTH 3105. He has also relied upon the Boards circular dated 19.5.1998 as well as the decision of the Honble Supreme Court in the case of Ranadey Micronutrients vs. Collector of Central Excise reported in 1996 (87) ELT 19 (SC).
6. After going through the impugned order and the reasoning adopted by the learned Commissioner (A), we are of the view that the same merits no interference. The classification as fertilizer under CTH 3105 has been finalized on the basis of the test reports of the samples drawn from the imported consignments. Consequently, the impugned order is upheld and the appeal filed by the Revenue is rejected.
7. Before parting with the matter, we also wish to record that in any imported goods such as seaweed fertilizer, seaweed winner, etc., there is possibility of the presence of hazardous materials such as arsenic, sodium, etc., in high concentration. If such goods are allowed to be cleared for use as fertilizer, it may have disastrous consequences for the agriculture sector. Consequently, the Customs Authorities are advised to be watchful and to allow clearances of such goods only after testing the samples in reliable laboratories and ensuring that they are not hazardous.
(Order was pronounced in Open Court on 08/05/2017.) V. PADMANABHAN TECHNICAL MEMBER S.S GARG JUDICIAL MEMBER rv 5