Custom, Excise & Service Tax Tribunal
Karnataka Agro Chemicals vs Bangalore-Iii on 22 December, 2023
E/1364/2010 with 23 others
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
BANGALORE
REGIONAL BENCH - COURT NO. I
Excise Appeal No. 1364 of 2010
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed
by the Commissioner of CE, Bangalore-III Commissionerate]
Karnataka Agro Chemicals ......Appellant
No. 180, 1st Main Road,
Mahalakshmi Layout,
Bangalore 560 086
VERSUS
Commissioner of Central Excise, ......Respondent
Bangalore-III
PB No. 5400, Queens Road,
C R Building, Bangalore
Karnataka 560 001
WITH
(i) Excise Appeal No. 1365 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(ii) Excise Appeal No. 1366 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(iii) Excise Appeal No. 1367 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(iv) Excise Appeal No. 1368 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(v) Excise Appeal No. 1369 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
Page 1 of 33
E/1364/2010 with 23 others
(vi) Excise Appeal No. 1370 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(vii) Excise Appeal No. 1371 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(viii) Excise Appeal No. 1372 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(ix) Excise Appeal No. 1373 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(x) Excise Appeal No. 1374 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(xi) Excise Appeal No. 1375 of 2010 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 06-17/2010 dated 31.03.2010 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(xii) Excise Appeal No. 20087 of 2015 (Sri Mahesh G Shetty
vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 15/2014-15 dated 17.10.2014 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(xiii) Excise Appeal No. 20088 of 2015 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. 15/2014-15 dated 17.10.2014 passed by the
Commissioner of CE, Bangalore-III Commissionerate]
(xiv) Excise Appeal No. 21306 of 2015 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-27-14-15 dated
27.02.2015 passed by the Commissioner of CE, Bangalore-III Commissionerate]
(xv) Excise Appeal No. 21307 of 2015 (Sri Mahesh G Shetty
vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-27-14-15 dated
27.02.2015 passed by the Commissioner of CE, Bangalore-III Commissionerate]
Page 2 of 33
E/1364/2010 with 23 others
(xvi) Excise Appeal No. 20236 of 2016 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-13-15-16 dated
20.11.2015 passed by the Commissioner of CE, Bangalore-III Commissionerate]
(xvii) Excise Appeal No. 20237 of 2016 (Sri Mahesh G Shetty
vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-13-15-16 dated
20.11.2015 passed by the Commissioner of CE, Bangalore-III Commissionerate]
(xviii) Excise Appeal No. 20246 of 2017 (Sri Mahesh G Shetty
vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-20-16-17 dated
25.11.2016 passed by the Commissioner of CE, Bangalore-III Commissionerate]
(xix) Excise Appeal No. 20247 of 2017 (Karnataka Agro
Chemicals vs. CCE, Bangalore-III)
[Arising out of Order-in-Original No. BLR-EXCUS-003-COM-20-16-17 dated
25.11.2016 passed by the Commissioner of CE, Bangalore-III Commissionerate]
(xx) Excise Appeal No. 21212 of 2018 (Karnataka Agro
Chemicals vs. CCE, Bangalore-West)
[Arising out of Order-in-Original No. 4/2017-PR Commr dated 09.10.2017 passed
by the Pr. Commissioner, Bangalore West]
(xxi) Excise Appeal No. 21215 of 2018 (Sri Mahesh G Shetty
vs. CCE, Bangalore-West)
[Arising out of Order-in-Original No. 4/2017-PR Commr dated 09.10.2017 passed
by the Pr. Commissioner, Bangalore West]
(xxii) Excise Appeal No. 20011 of 2021 (Karnataka Agro
Chemicals vs. CCE, Bangalore-West)
[Arising out of Order-in-Original No. 12/2020-(PR Commr) dated 12.10.2020
passed by the Pr. Commissioner, Bangalore West]
(xxiii) Excise Appeal No. 20012 of 2021 (Sri Mahesh G Shetty
vs. CCE, Bangalore-West)
[Arising out of Order-in-Original No. 12/2020-(PR Commr) dated 12.10.2020
passed by the Pr. Commissioner, Bangalore West]
Appearance:
Present for the Appellants: Sh. G. Shivadass, Sr. Advocate
Sh. M.S. Nagaraja, Advocate
Present for the Respondent: Sh. P.R.V. Ramanan, Special Counsel, A.R.
Coram:
Hon'ble Dr. D. M. Misra, Member (Judicial)
Hon'ble Mr. Pullela Nageswara Rao, Member (Technical)
Page 3 of 33
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FINAL ORDER NO. 21456 to 21479 of 2023
DATE OF HEARING: 27.07.2023
DATE OF DECISION: 22.12.2023
Per: Dr. D. M. Misra
These appeals are filed against respective Orders-in-Original
passed by the Commissioner of Central Excise, Bangalore, since
involve common issues are taken up together for hearing and
disposal.
Sl. Appeal No. Impugned Order No. Period Amount involved
No.
1 E/1364 to OIO No. 06-17/2010 August 2001 Rs.2,89,64,308/-,
to 1375/2010 dated 31.03.2010 To Rs.23,26,36,443/-
12 31.12.2009 +interest and penalty of
Rs.1,50,00,000/-
13 E/20087/2015 OIO No. 15/2014-15 January 2010 Rs.31,33,73,346/-
to and dated 17.10.2014 To +interest
14 E/20088/2015 August 2013 +Rs.31,33,73,346/- as
penalty
Rs.3,15,00,000/-
penalty on Shri Mahesh
G Shetty
15 E/21306/2015 OIO No. BLR-EXCUS- September Rs.9,81,15,243/-
to and 003-COM-27-14-15 2013 +interest
16 E/21307/2015 dated 27.02.2015 To +Rs.98,00,000/- as
June 2014 penalty
Rs.10,00,000/- penalty
on Shri Mahesh G Shetty
17 E/20236/2016 OIO No. BLR-EXCUS- July 2014 Rs.9,74,30,425/-
to and 003-COM-13-15-16 To +interest
18 E/20237/2016 dated 20.11.2015 March 2015 +Rs.97,00,000/- as
penalty
Rs.10,00,000/- penalty
on Shri Mahesh G Shetty
19 E/20246/2017 OIO No. BLR-EXCUS- April 2015 Rs.8,58.83,708/-
to and 003-COM-20-16-17 To +interest
20 E/20247/2017 dated 25.11.2016 September +Rs.8,58,83,371/- as
2015 penalty
Page 4 of 33
E/1364/2010 with 23 others
Rs.10,00,000/- penalty
on Shri Mahesh G Shetty
21 E/21212/2018 OIO No. 4/2017-PR October 2015 Rs.23,97,79,059/-
to and Commr dated To +interest
22 E/21215/2018 09.10.2017 March 2017 +Rs.2,20,00,000/- as
penalty
Rs.44,00,000/- penalty
on Shri Mahesh G Shetty
23 E/20011/2021 OIO No. 12/2020-PR April 2017 Rs.5,10,13,235/-
to and Commr dated To +interest
24 E/20012/2021 12.10.2020 June 2017 +Rs.51,02,000/- as
penalty
Rs.5,00,000/- penalty on
Shri Mahesh G Shetty
2. Briefly stated the facts of the case are that the appellant, a
partnership firm, are engaged in manufacture of micronutrients
fertilizers for soil application and also for foliar application. The
appellants have been granted necessary license by the Karnataka
State Government under the Fertilizer (Control) Order, 1985 to
manufacture and market micronutrient fertilizers in various states.
During the relevant period, the appellant had manufactured and
cleared micronutrients fertilizers without payment of duty claiming
its classification as "other fertilizers" under Chapter Heading 3105 of
Central Excise Tarriff Act, 1985. On the basis of intelligence and
investigation initiated in the year 2000, and on completion of the
same, show cause notice was issued to the appellant alleging that
the product micronutrient is classifiable as "Plant Growth Regulator"
(PGR in short) falling under chapter sub-heading 3808.20 of CETA,
1985 and duty with interest demanded invoking extended period.
On adjudication, demands were confirmed with interest and penalty.
Aggrieved by the said orders, the appellant approached the Tribunal.
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This Tribunal vide Final Order No. 341-347/2007 dated 26.02.2007
set aside the adjudication order and allowed the appeals. The
Revenue challenged the said order before the Hon‟ble Supreme
Court and vide its order dated 15.05.2008, the Hon‟ble Supreme
Court setting aside invoking the extended period, remanded the
matter to the adjudicating authority for de novo adjudication. In de
novo proceeding, the learned Commissioner re-examined the issue
and concluded the classification under chapter sub-heading 3808.20
as "PGR" and confirmed the demands for the normal period. Also,
periodical show cause notices issued from time to time for normal
period have also been confirmed with interest and penalty in the
novo proceeding. Hence, the present appeals.
3.1 The learned Sr. Advocate for the appellants submits that
this is the second round of litigation before this Tribunal pursuant to
the remand order by the Hon‟ble Supreme Court. He submits that
subsequent to the order of Hon‟ble Supreme Court, remanding the
matter to the adjudicating authority to examine the process of
manufacture of the goods in question, a committee was appointed
by the Commissioner to visit the appellant‟s factory for verification
of the process of manufacture. Consequently, the committee visited
the factory of the appellant on 06.01.2009 and report was submitted
by the committee on 08.05.2009 after conducting necessary
verification of manufacturing process at the factory of the appellant.
On 10.06.2009, the appellant sought copy of the report furnished by
the committee before attending the personal hearing allowed by the
Commissioner. Thereafter, on 12.09.2009, the departmental officer
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visited the factory to collect the samples of the goods and on
16.10.2009, a letter from Commissioner was written to the Director,
Department of Agriculture, Govt. of Karnataka requesting for testing
the samples to ascertain percentage of each mineral and whether
the same is a PGR/micronutrient/fertilizer. The Director, Department
of Agriculture, Govt. of Karnataka submitted his report on
25.11.2009. Later, the Commissioner on 03.12.2009 sought the
opinion of Mr. N. R. Bhaskar, Advocate, Supreme Court of India, on
the legality of the Committee constituted in light of Supreme Court‟s
direction. On 07.12.2009, in his opinion Mr. N. R. Bhaskar indicated
that in terms of the Supreme Court‟s direction, the
Commissioner/Adjudicating Authority had to themselves verify the
process of manufacture without constituting an expert committee.
Consequently, the Commissioner visited the factory of the appellant
to examine the method of manufacture of micronutrient and the
classification of which has been in dispute.
3.2 It is his contention that the sequence of events indicates a
pre-meditated approach by the Revenue in the de novo proceedings,
wherein the committee‟s report was totally ignored.
3.3 Further, challenging the findings of the ld. Commissioner, it
is submitted that even though the Supreme Court vide its order
dated 15.05.2008, specifically directed the adjudicating authority to
examine the process of manufacture for determination of the
classification of micro-nutrient. Pursuant to the said direction, the
committee was constituted, who in its report dated 05.05.2009
made the following findings:
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(a) Nitrogen is used in the form of Urea, Potassium Nitrate and
Calcium Nitrate and Potassium is contained in the form of
Potassium Nitrate; such compounds are added at the
beginning of the manufacturing process itself and are mixed
thoroughly, inferring that the compounds of Nitrogen and
Potassium are an integral part of the manufacturing process
and not used as a pretence for the purpose of classification.
(b) There is a presence of Nitrogen to the extent of 5% to 7%
as had already been declared by the appellant, although the
percentage of a compound in the product does not have any
bearing regarding the essentiality of compound.
(c) As per the Circular No. 392/25/98-CX dated 19.05.1998,
for classification under Chapter 31, the micro-nutrients must
be separate chemically defined compounds and it should
contain Nitrogen. The micronutrients in the instant case
adhere to both the conditions.
(d) The Hon‟ble Supreme Court vide its order dated
15.05.2008 has stated that plant growth regulators are
organic compounds. The micronutrients are clearly not organic
compounds and thus, they may not be called plant growth
regulators.
3.4 The learned Advocate for the appellants has further
submitted that by not accepting the report the Order of the
Supreme Court has not been followed. The order of the Supreme
Court should have been strictly followed in the remand proceedings.
In support, he placed reliance on the decision of Hon‟ble Gujarat
High Court in the case of Indian Oil Corporation Ltd vs. UOI - 2010
Page 8 of 33
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(262) ELT 94 (Guj.) and the decision of Hon‟ble Supreme Court in
the case of UOI vs. Kamlakshi Finance Corporation Ltd - 1991 (55)
ELT 433 (SC).]
3.5 He has further submitted that the Revenue/Respondent was
bound to follow the specific directions of the Hon‟ble Supreme Court
and by failing to do so, the Respondent has violated the principle of
judicial discipline.
3.6 He has further submitted that the finding of the
Commissioner that Nitrogen has been added to the subject products
only from the year 2000 onwards and not an essential constituent,
is contrary to facts and law. The fact of presence of Nitrogen in the
micronutrients cleared by the appellant, has been consistently
recorded in the proceedings. The question of presence of Nitrogen
was raised by the Revenue in the year 1994 and based on the
chemical analysis report by the Chief Chemist, New Delhi, demands
were dropped and classification under Chapter Heading 3105 was
approved. The samples which were seized and provided to the
Chemical Examiner for the chemical test, also indicated presence of
Nitrogen in the samples in its report dated 11.01.2001. In the show
cause notice dated 26.08.2002, even though it was alleged that
Nitrogen was not present as fertilizing element but acknowledged
presence of Nitrogen as a chelating agent. Thus, the presence of
Nitrogen has been confirmed all along.
3.7 Further, he has submitted that the presence of Nitrogen has
also been recorded by the Tribunal in its order dated 26.02.2007
and by the Hon‟ble Supreme Court in its order dated 15.05.2008.
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3.8 He has further submitted that the learned Commissioner
has wrongly placed reliance on the Fertilizer (Control) Order, 1985
and the formulations submitted by the appellant to the Department
of Agriculture in ascertaining the presence of Nitrogen or otherwise
in the micronutrients manufactured by the appellant.
3.9 He has also submitted that the Fertilizer (Control) Order,
1985 held to be irrelevant for determination of classification under
Central Excise in the Circular No. 392/25/98-CX dated 19.05.1998.
3.10 Further, he has submitted that the Commissioner is bound
to follow the Board‟s Circular, which is binding on him. In support,
he has placed reliance on the decision of Hon‟ble Supreme Court in
the case of CCE & ST, Rohtak vs. Merino Panel Products Ltd - 2023
(383) ELT 129 (SC).
3.11 Referring to Note 6 of Chapter 31, HSN Explanatory Notes
and Note 1 to Chapter 38 of the CETA, 1985, the ld. Advocate for
the appellant has submitted that the subject goods are mixtures of
micronutrients containing Nitrogen and Potassium, and are not
separate chemically defined compounds, which are not classifiable
as „plant growth regulator‟ under Chapter Heading 3808 of the
CETA, 1985. In support, he referred to following case-laws:
(i) Leeds Kem vs. CCE, Aurangabad - 2001 (134) ELT 294
(Tri. Del.)
(ii) CCE, Rohtak vs. Safex Chemicals (I) Ltd - 2017 (7) GSTL
234 (Tri. Chan.)
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(iii) Northern Minerals Ltd vs. CCE, Delhi - 2001 (131) ELT
355 (Tri. Del.) approved by Hon'ble Supreme Court reported
as 2003 (156) ELT A161 (SC)
(iv) Ranadey Micronutrients vs. CCE - 1996 (87) ELT 19 (SC)
(v) CCE, Hyderabad-IV vs. Aries Agrovet Industries Ltd - 2017
(7) GSTL 317 (Tri. Hyd.)
(vi) San Industry vs. CCE, Hyderabad-I - 2018 (11) GSTL 320
(Tri. Hyd.)
(vii) Shivshakti Bio Plantec Ltd vs. CCE, Hyderabad - 2019
(20) GSTL 243 (Tri. Hyd.)
(viii) Sree Ramcides Chemicals Pvt Ltd vs. CCE, Trichy - 2016
(337) ELT 412 (Tri. Che.)
(ix) Narmada Bio Chem Pvt Ltd vs. CCE, Vadodara-I - 2019
(370) ELT 1276 (Tri. Ahmd.)
(x) KPR Fertilizers Ltd vs. CCE, Vishakhapatnam-II - 2023
(384) ELT 216 (Tri. Hyd.)
3.12 Further, it is his submission that the subject micronutrient
fertilizers with pre-determined proportions of various micronutrients
and containing 5% to 7% Nitrogen and Potassium during the
relevant period of dispute are classifiable as „other fertilizers‟ under
Chapter Heading 3105 of CETA, 1985.
3.13 Further, he has submitted that the process of mixing of
micronutrients, does not amount of „manufacture‟. It is submitted
that the manufacturing activity concerning soil application powder is
mainly manual, whereas that of powder foliar spray is partially
mechanized and the major portion of mechanized activity relates to
packing of finished product. In simple terms, the entire activity of
manufacturing of the products is limited to mixing various raw
materials obtained from different sources in specific proportions and
packing them, which is ready for consumption. Admittedly, the
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process of manufacturing is devoid of any chemical reaction. The
source of Nitrogen is Urea introduced at the time of mixing various
raw materials. The learned Commissioner has held that in the
absence of chemical reaction, the method of manufacture has no
bearing whatsoever on the issue of classification. The same method
of manufacture has also been reported by the committee of officers
in their report dated 08.05.2009.
3.14 It is his contention that the process of mixing various
micronutrients in predetermined proportions for use of the resultant
mixture as fertilizers, has not resulted in emergence of a different
commodity with different identity, character and use. Each
micronutrient in the mixture is a unique nutrient and independently
contributes its nutritive value to the soil or plant. It is submitted
that in the absence of a new commodity emerging as a result of the
process, no „manufacture‟ of the goods took place in terms of
Section 2(f) of the Central Excise Act, 1944.
3.15 Further, he has submitted that the individual micronutrients
do not undergo any change in their nutritional character or nutritive
value and their function as fertilizing element. The purpose of
mixing different micronutrients in providing each nutrient in the
required proportion, dose or quantity as per the requirement of the
plant and soil conditions. The process of mixing does not alter or
change the basic character or utility of each constituent of the
mixture of micronutrients. Each micronutrient retains its original
nutrition value for soil and plant. They have not lost their identity
and combined with other micronutrients to form a different
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commodity with different identity, character and use. The mixture
of micronutrients is marketed based on the proportion of each
constituent micronutrients. There is no chemical reaction or
transformation of micronutrients into a different commodity. The
process of mixing duty paid organic and inorganic chemicals into a
mixture of micro-nutrients does not amount to "manufacture" of a
different commodity. In order to attract duty, the goods must
emerge as a result of manufacture and must be marketable. The
twin tests need to be satisfied. In support, he relied on the
following judgments of Hon‟ble Supreme Court:
(i) UOI vs. Delhi Cloth and General Mills Co Ltd - 1977 (1) ELT
J199 (SC)
(ii) South Bihar Sugar Mills Ltd vs. UOI - 1978 (2) ELT J336
(SC)
(iii) UOI vs. J G Glass Industries - 1998 (97) ELT 5 (SC)
(iv) CCE vs. Tarpualin International - 2010 (256) ELT 481
(SC)
(v) Metflex (I) Pvt Ltd vs. CCE, New Delhi - 2004 (165) ELT
129 (SC)
(vi) Crane Betel Nut Powder Works vs. CCE, Tirupati - 2007
(210) ELT 171 (SC)
3.16 It is his submission that the re-packing and re-labeling of
Multiplex Samras does not amount to „manufacture‟ being accepted
in the impugned orders. Regarding the re-packing of Multiplex
Sulphur, it was held by the Tribunal vide its order dated 26.02.2007
that if the value of micronutrient classified under Chapter Heading
3105 is excluded, the aggregate value of clearance would come
within the exemption limit under SSI Exemption Notifications.
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3.17 Further, he has submitted that the imposition of personal
penalty under Rule 26 of the Central Excise Rules, 2002 on Sri
Mahesh G Shetty, Partner is not sustainable in view of the
judgments of Hon‟ble Gujarat High Court in the cases of CCE vs. Jai
Prakash Motwani - 2010 (258) ELT 204 (Guj.) and Pravin N Shaw
vs. CESTAT - 2015 (305) ELT 480 (Guj.).
4.1 Per contra, the ld. Senior Special Counsel for the Revenue
submits that the first round of litigation went upto the Hon‟ble
Supreme Court and vide order dated 15.05.2008, the matter was
remanded for de novo consideration with specific
observations/directions for consideration of the adjudicating
authority. The invoking of extended period of limitation was set
aside.
4.2 It is his submission that in the remand order, the Hon‟ble
Apex Court noted that the adjudicating authority had not examined
the method of manufacture of the impugned products; the plea of
the appellant that Nitrogen is an essential constituent, hence,
classifiable as „other fertilizers‟, was not considered. Further, it is
observed that the impugned products are mixtures of various
inorganic substances and the method of manufacture has a strong
bearing on the question of determination of classification.
4.3 Further, he has submitted that the Hon‟ble Apex Court
observing that the impugned product being essentially PGR, directed
the adjudicating authority to go into the composition and find out
whether 0.31% of Nitrogen would convert PGR into a nutrient falling
under Chapter Heading 31.05 and whether with the addition of
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0.31% of Nitrogen, PGR becomes „other fertilizers‟ under the same
Chapter Heading.
4.4 Further, he has submitted that pursuing the said direction of
the Hon‟ble Supreme Court, the adjudicating authority visited the
factory of the appellant and conducted a detailed study of the raw
materials required and the manufacturing process. Summarizing the
findings of study conducted, he has submitted as follows:
(i) Basically, the raw materials necessary for the manufacture of
the impugned products are mixed in a required proportion
and then mixed, ground and packed.
(ii) Raw materials required namely Zinc Sulphate, Calcium
Nitrate, Ferrous Sulphate, Urea, Borax, Manganese Sulphate
etc., are procured from various manufacturers.
(iii) The process of manufacture is devoid of any chemical
reaction.
(iv) Basic process involved is simply mixing the raw materials in
a fixed ratio and packing.
(v) Most part of the manufacturing process is manual and the
only level of sophistication involved is in packing the foliar
spray.
(vi) The products are mixtures of organic and inorganic
substances and not distinct compounds.
(vii) Nitrogen is added in the form of Urea.
4.5 The adjudicating authority, on the basis the study
conducted, reached the following conclusions:
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(a) The process of manufacture of impugned products is devoid
of any chemical reaction. The Nitrogen content is not due to
any chemical reaction but due to the addition of Urea, which
can be done even at the time of final use. Thus, the method
of manufacture adopted by the appellant has no bearing on
the classification of impugned products.
(b) It is not mandatory to include Nitrogen or Phosphorus or
Potassium in micronutrients. Nitrogen is not a
basic/fundamental constituent element in the impugned
products. Nitrogen is not the element, which makes the
impugned products what they are. Conversely, the presence
of Nitrogen in the impugned products does not qualify the
goods to be classified as „other fertilizers‟ under Heading
3105.
(c) For any product to merit classification under heading 31.05,
it is mandatory that elements such as Nitrogen or
Phosphorus or Potassium, if present, should function as a
fertilizing element. In terms of Note 6 to Chapter 31 of the
CET mere presence of Nitrogen is not sufficient to hold that
any product would fall under Heading 3105. Nitrogen should
be present as a fertilizing element. As observed by the Apex
Court, a micronutrient may be fertilizer but not in terms of
composition and that Nitrogen or Phosphorus or Potassium
is not a constituent element of micronutrient. Thus, it
transpires that the impugned products are excluded from
the scope of 3105.00 of CET by virtue of Chapter Note 6.
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(d) Nitrogen content in the impugned products was 0.31% for
the period when the Apex Court gave its Order in May,
2008. For the subsequent period, gradually the percentage
content of Nitrogen has been raised to 5%. One of the
important criteria to be satisfied for classification of any
product under Heading 3105, is that Nitrogen or Phosphorus
or Potassium contained in the product should be an
essential constituent of the product.
(e) The impugned products contain in principle Zinc Salts, Boric
Acid, Ferrous Salts, Manganese Salts, Calcium, Magnesium
and Urea. The absence or presence of Nitrogen in the
impugned products has no bearing on the classification of
the goods under the Fertilizer Control Order. In the instant
case, the presence of Nitrogen whether at 0.31% or 5% is
not altering the nature of the subject goods, namely,
micronutrients. Hence, the addition of Nitrogen in the form
of Urea to PGR.
(f) Nitrogen is not an essential constituent of the impugned
products. Its addition in the form of Urea was pretence/
non-essential additive, so that the impugned products could
be classified as „other fertilizers‟ falling under Heading
3105.00.
4.6 The learned Commissioner examining the issue in the light
of Notifications/Registration Certificates issued by the State
Agriculture Department, recorded his findings that elements other
than Zn, Fe, Mn and B are not mandatory but optional. In the
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impugned product, Nitrogen is not the basic or fundamental
constituent element.
4.7 Further, referring to the printed labels on the impugned
products, it is held that Nitrogen is not indicated as constituent
element of the product.
4.8 Further, analyzing the cost worksheets in respect of some of
the impugned products, it is recorded that Nitrogen was not shown
to be present prior to year 2000. The department also not raised
the classification of the products during that period. It was only
after the appellant commenced adding Urea to the micronutrients to
seek classification of the impugned products under Chapter Heading
3105, which was a pretence to show the presence of Nitrogen in the
impugned products. Consequently, following the judgment of
Hon‟ble Supreme Court and examining the issue accordingly, it is
held that the impugned products are to be classified under Chapter
Heading 3808 and not under Chapter Heading 3105 of the CETA,
1985.
4.9 Responding to the arguments of the appellant on the
objection of non-acceptance of the report of the committee of the
officers constituted, it is submitted that the adjudicating authority
had initially constituted a committee to study the aspects indicated
by the Hon‟ble Apex Court in its judgment. The committee
submitted its report. Thereafter, a doubt arose whether in terms of
the order of the Hon‟ble Apex Court, it was permissible to set up the
committee without the permission of the Hon‟ble Apex Court.
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Consequently, the opinion of the Senior Standing Counsel of the
Central Government was sought, who opined that without express
permission of the Hon‟ble Apex Court, it would be ultra-vires the
direction of the Court and that the question has to be necessarily
determined by the adjudicating authority by verifying the facts
himself. Accepting the said opinion, the learned Commissioner
himself visited the appellant‟s factory on 16.12.2009. Hence, non-
reliance on the report of committee set up earlier, is of no
consequence.
4.10 Further, he has submitted that there are reasonable
grounds for the adjudicating authority in not accepting the report of
the committee of Superintendents. While he has not differed with
the technical details cited in the said report, but he has rejected the
opinions/recommendations contained in the said report. Further, he
has submitted that the adjudicating authority is not bound to follow
the opinions/recommendations contained in the report.
4.11 Further, replying to the contention of the appellant that in
the case of another manufacturer (CIBA India Ltd vs. CC, Chennai),
the issue has been settled in favour of the assessee, he has
submitted that the issue in the said case was determination of
classification between the headings 29.22 and 31.05 and the claim
that the subject product was used as fertilizer was not disputed.
Hence, reliance cannot be placed on the said decision. Besides, in
the first round of litigation, the Hon‟ble Apex Court itself have
opined that the impugned product is essentially a PGR.
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4.12 Also, responding to the argument that the products are not
classifiable under Chapter Heading 38.08, since mixtures of
individual chemicals or other elements, cannot be considered as
PGR, he has submitted that the judgment cited by the appellant
would have little value since the Hon‟ble Supreme Court has
considered all the issues in the context of the impugned products
and has observed that the products are essentially PGR after
referring to several technical literatures on the subject.
4.13 Further, he has submitted the as per Note 1 to Chapter 38,
what is excluded from that chapter, are separate chemically defined
elements or compounds, usually classified under Chapter 28 or 29,
other than such elements and compounds used as insecticides,
rodenticides, fungicides etc. including PGR, put up as described in
heading 38.08. Further, this chapter covers a wide range of
chemicals and related products including both organic and inorganic
products and also mixtures of chemicals. Further, he submits that
therefore, the correct classification of the impugned products be
concluded as under Heading 3808.
5. Heard extensively both sides, considered the written
submissions and perused the records.
6. This is the second round of litigation before this Tribunal. In
the earlier round, this Tribunal has decided the issue viz.,
classification of Micro Nutrient Fertilisers manufactured by the
appellants classifiable as "Other Fertilisers" under Chapter Sub-
heading 31.05 of Central Excise Tariff Act, 1985.
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7. Revenue‟s contention all along has been that the products in
question are classifiable as Plant Growth Regulator (PGR) falling
under Chapter Subheading 38.08 of Central Excise Tariff Act, 1985.
Hence, aggrieved by the order of the Tribunal, the Revenue
approached Hon‟ble Supreme Court. The Hon‟ble Supreme Court
while disposing Revenue‟s appeal analysed the issues in detail and
remanded the matter to the adjudicating authority with certain
observation/direction to consider the issue of classification a fresh.
8. We are of the view, therefore, addressing the issues now
raised in the present appeals, challenging the de novo order should
be limited to the extent of analysing implementation of the
observation/direction of the Hon‟ble Supreme Court in remanding
the case for deciding the classification of the products viz.
micronutrients.
9. The adjudicating authority, pursuant to the remand,
commenced the de novo proceeding by appointing a Committee of
Officers to examine the process of manufacture of the impugned
products and submit their report accordingly. The Committee
comprising of two Superintendents visited the factory of the
Appellant, examined the process of manufacture and submitted their
report to the Commissioner on 08.5.2009.
10. Later, the Ld. Commissioner sought the advice of the
Government Standing Counsel on the question, that is, whether in
the light of the observation of Hon‟ble Supreme Court, delegating
the task of examination of the manufacturing process to a
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Committee of officers, instead of the adjudicating authority himself,
would be correct or otherwise. The learned Standing Counsel by his
opinion dated 7.12.2009 communicated as:
"On a plain reading of the Hon'ble Supreme Court's order it
becomes clear that the question of determination of whether
with the addition of 0.31% of nitrogen, the PGR becomes "Other
Fertilizers" in CSH 3105.00 is the question which needs to be
examined by the Adjudicating Authroity as it is the case of the
Department that the assessee had added nitrogen only as a
pretence so that the impugned product(s) could be classified as
"other fertilizer" under CSH 3105.00. Further, their Lordships
have expressed that in their view, essentially the impugned
product is PGR. However, assessee contends that the impugned
product (s) is a mixture of various inorganic substances and
therefore.
It is therefore the opinion of the undersigned that constitution of
a expert committee without the express permission of the
Hon'ble Supreme Court would be ultravires the directions of the
apex Court. The issue in question would necessarily have to be
determined by the Commissioner/adjudicating authority by duly
verifying and by considering and taking into account all
determinants that would go to decide the issue in question."
11. Based on the said legal advice/opinion, the Commissioner
himself visited the factory premises of the appellant on 16.12.2009
and examined the process of manufacture of the impugned
products.
12. The procedure adopted by the learned Commissioner in
carrying out the direction/observation of the Hon‟ble Supreme
Court, in the denovo proceeding has been assailed by the appellant.
The appellant‟s contention is that the report of the Committee of
Superintendents has been discarded without any basis; it is
vehemently argued that the report is not accepted by the Ld.
Commissioner as the same is not to the desired expectation of the
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department. Therefore, such an approach of the Commissioner is
pre determined and bad in law.
13. We find that the Ld. Commissioner while analyzing the said
allegations of the appellant held that since his predecessor after
receiving the report of the Committee of officers neither commented
nor recorded his opinion on the report, therefore, with a change of
adjudicating authority, a reference was made to the departmental
standing counsel seeking legal opinion on delegation of the task of
examination of method of manufacture to the Committee of officers.
The opinion of the learned Standing Counsel was that constitution of
a Committee without express permission of the Hon‟ble Supreme
Court would be ultra vires of the direction of the apex court.
Following the said legal advise, the adjudicating authority himself
visited the factory premises of the Appellant to examine the process
of manufacture before, re-adjudicating the case in the light of the
observation/direction of the Hon‟ble Supreme Court.
14. Analyzing the reasoning recoded by the Ld. Commissioner
on the objection of the Appellant, we do not see any error or
illegality in his approach in not considering the report of the
Committee of Officers appointed by his predecessors and
ascertaining the process of manufacture himself. Secondly, the
direction given by the Hon‟ble Supreme Court is specific and it is to
the adjudicating authority to examine the manufacturing process
and decide the case accordingly. Therefore, reading the said
direction of the Hon‟ble Supreme Court and legal opinion of the
Standing Counsel, the course of action adopted by the Ld.
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Commissioner within the contours of de novo proceedings. Further,
on merit, we find that reading the Committee‟s Report on the
process of manufacture and that of recorded by the Ld.
Commissioner after visit to the factory premises of the appellant, we
do not see any material difference on the facts. What is noticed is
that in addition to stating the process of manufacture, the
committee of officers in its report proceeded further by interpreting
the order of the Hon‟ble Supreme Court, applicability of Note 6 of
Chapter 31 and Circular dated 19.5.1998 observing that the goods
are rightly classifiable under Chapter 31.05 and the products may
not be called as „Plant Growth Regulator. In our view, the
interpretation of the Circular, Order of the Hon‟ble Supreme Court
and applying the same to the facts of the present case, by the
Committee of officers is beyond the scope of authority delegated to
the Committee whose only task is to physically verify the process of
manufacture by visiting the factory and report the same to
Commissioner. Therefore, the report of the Committee of officers
commenting on the classification dispute and deciding the
classification cannot stand the scrutiny of law and rightly rejected by
the learned Commissioner.
15. Now, before analyzing the finding of the adjudicating
authority in carrying out the direction of the Hon‟ble Supreme Court
in the de novo proceedings, it is necessary to analyze the context
and the observations of the Supreme Court in remanding the case to
the adjudicating authority.
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16. The Hon‟ble Supreme Court in the said judgement examined
the issue in detail, that is, whether the impugned products be
classifiable as Plant Grow Regulator (PGR) under Chapter
Subheading 3808.20 alleged by the Revenue or under Chapter
Subheading 3105.00 as "Other Fertilizers" claimed by the appellant.
The observations are reproduced as below:
...........................................................
"17. The issue involved in this civil appeal is : whether the impugned product(s) is a PGR or a fertilizer?
18. The contention of the Department in its show cause notice is that the micronutrient compounds manufactured by the respondent-assessee were liable to be classified under CSH 3808.20 and not under CSH 3105.00 on account of absence of N, P or K in the impugned product(s). According to the Department, there is 0.31% of nitrogen in the impugned product as a chelating agent and not as a fertilizing element and that even if it is a fertilizing agent, its quantity of 0.31%, would not amount to "essential constituent" in terms of explanatory note 6 to Chapter 31.
19. We have examined several reference books, some of which are quoted hereinabove, which shows that micronutrients per se, as against macronutrients, do not contain N, P or K.
20. Micronutrient(s) functionally may be a Fertilizer but not in terms of composition. In fact, N, P or K is the constituent element of macronutrient and not of micronutrient.
21. Coming to PGRs, it needs to be emphasized that they are organic compounds, other than nutrients, which in small quantity inhibits, promotes, alters or modifies physiological processes in plants.
22. In the present case, the impugned product(s) is "multi micronutrient". It is contended on behalf of the assessee that the impugned product(s) contains nitrogen, hence it is classifiable as "other fertilizer" under CSH 3105.00. It is contended that nitrogen is an essential constituent of the impugned product(s) and, therefore, the same is classifiable as "other fertilizers". Page 25 of 33
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23. Therefore, the relevant question to be asked is : what is the method of manufacture of "multi micronutrient"? This question becomes relevant as the impugned product(s) is a mixture of various inorganic substances. It is the "method of manufacture" which has a strong bearing on the question whether the product(s) needs to be classified under CSH 3808.20 or under CSH 3105.00. This aspect has not been examined by the Adjudicating Authority.
24. It is alleged by the Department that N, P or K are not the essential constituents of micronutrient(s). We agree. However, in this case, the impugned product(s) is "multi micronutrient" which the assessee claims to be a mixture of various inorganic substances. In this connection it is important to note that two tests have been formulated in the circular of CBEC dated 19-5- 1998, namely, whether the subject-product(s) is a chemically defined compound, if so, it goes out of CSH 3105.00. If not, whether the said product(s) contains N, P or K as constituent element in terms of explanatory note 6.
17. Their Lordships analysing the scope of the terms micronutrient, PGR and other fertilizers, in the backdrop of rival claims, observed that admittedly nitrogen is present as a chelating agent, not as a fertilizing agent; even if it is a fertilizing agent, would not amount to an essential constituent under explanatory note 6 of chapter 31.
18. Therefore, it is clear from the said observation of Apex court is that to verify the categorical claim of the appellant that Nitrogen is an essential constituent of the products (multi micronutrients) in question, it is said at para 23 of the judgement that to an answer to the said question, the method of manufacture of „multi-micronutrient‟ becomes relevant.
19. Thus, the direction of the Hon‟ble Supreme Court is to examine the process of manufacture, so as to ascertain the claim of the appellant that Nitrogen is present as an „essential constituent‟ of the Page 26 of 33 E/1364/2010 with 23 others impugned product, hence fall under Chapter Subheading 3105.00. This is further clear, when we read the observation at para 24; the department‟s allegation that N, P or K not an essential constitute of a „Multi Micro Nutrient‟ has been agreed by their Lordships as a general argument, but proceeded in observing that the impugned product is "Multi Micro Nutrient", which the assessee claims to be a mixture of various inorganic substances. Thereafter, referring to the Circular which laid down two tests, it is observed that if the subject products are separate chemically defined compounds, then it goes out of Chapter 31.05, otherwise it is to be examined whether the product contains N, P or K as essential constituent element in terms of Explanatory Notes 6.
20. The observation of the Hon‟ble Supreme Court case reads as below:
"25. In the show cause notice, no allegation was made by the Department that the impugned product(s) is a distinct chemical compound. Therefore, the only question is whether the impugned product(s) contains nitrogen as an "essential constituent".
According to the assessee, the impugned product(s) is a mixture of various inorganic substances whose essential constituent is nitrogen which makes it a fertilizer. It is this point which arises for consideration, viz. whether 0.31% of nitrogen found to exist in the impugned product(s) would make it a fertilizer. In this connection, the aforestated scientific study indicates that PGRs are organic compounds, other than nutrients. As compared to nutrients which play a major role in the plant growth as a whole, PGRs play a restrictive role. PGR do not contain N, P or K. In the impugned product(s) manufactured by the assessee, PGR exists. Therefore, the question to be asked is whether presence of mere 0.31% of nitrogen would make the PGR in the impugned product classifiable as "other fertilizers" in CSH 3105.00. In our view, essentially the impugned product is Page 27 of 33 E/1364/2010 with 23 others PGR. However, assessee contends that the impugned product(s) is a mixture of various inorganic substances and, therefore, it is for the Adjudicating Authority to go into composition and find out whether 0.31% of nitrogen would convert PGR into nutrient falling under CH 31.05. Whether with addition of 0.31% of nitrogen, the PGR becomes "other fertilizers" in CSH 3105.00 is the question which needs to be examined by the Adjudicating Authority as it is the case of the Department that the assessee has added nitrogen only as a pretence so that the impugned product(s) could be classified as "other fertilizer" under CSH 3105.00." (emphasis supplied).
21. Analyzing the process of manufacture, the learned Commissioner came to the conclusion that the entire process is devoid of any chemical reaction and the source of nitrogen is urea which is added at the time of mixing various raw materials. He has inferred that the Nitrogen found in the product are not due to any chemical reaction emerging during the course of manufacture, but introduced artificially as chemical urea at the time of mixing. Further, he has held that adding urea to the products at any point of time is not going to change the nature of this product i.e., whether it is added at the beginning, during or at the end of the process of mixing. In this context, he has held that the method of manufacture as directed to be examined by the Hon‟ble Supreme Court found to have no bearing on the issue of determination of classification. In other words, the method of manufacture could not help to determine the presence of „Nitrogen‟ as an essential constituent of the disputed products.
22. The said finding of the learned Commissioner has been assailed by the Appellant submitting that it is contrary to the Page 28 of 33 E/1364/2010 with 23 others observation/direction of the Hon‟ble Supreme Court. It is submitted that the Supreme Court in the order has held that it is the method of manufacture which has a strong bearing on the question, whether the product needs to be classified under Chapter Subheading 3808 or 3105, which aspect was not examined by the adjudicating authority in the first round of litigation. Accordingly, direction was issued to examine the process of manufacture.
23. We are of the view that the Commissioner‟s observation that the manufacturing process has no bearing on the issue of classification is read out of context, in as much as the case was remanded to the adjudicating authority to examine whether Nitrogen is an „essential constituent‟ and by addition of the same, which admittedly constitute 0.31% (later increased upto 5% during the relevant period) the impugned product held to be PGR by Hon‟ble Supreme Court comprising of various inorganic substances, would convert PGR into a fertilizer falling under Chapter Sub-heading 3105.00. Even though the Hon‟ble Supreme Court theoretically agreed with the argument of the Revenue that N, P or K is not an essential constituent of the „micronutrients‟, but for examination of the categorical claim of the Appellant that it is present as an "essential constituent" of the impugned products, remanded the case for verification of the process of manufacture to ascertain the said fact, as the adjudicating authority had earlier not verified the process of manufacture of the products in determine its classification.
24. In the de novo proceeding, the learned Commissioner after verifying the process of manufacture held that it is purely a physical Page 29 of 33 E/1364/2010 with 23 others process of mixing of various constituents; the Nitrogen which is added in the form of urea does not undergo any chemical reaction with any of the constituent of the impugned product, it remains as it is, therefore, adding the same at the beginning or at the end of the process of physical mixing would not make any difference. Accordingly, he has concluded that the process of mixing undertaken by the appellant could not lead to their claim that adding Nitrogen containing chemical urea converts PGR into nutrient falling under Chapter 31.05.
25. In our considered opinion, the said finding of the Ld. Commissioner answers/satisfies the question raised by the Hon‟ble Supreme Court in remanding the case to ascertain whether process of manufacture would demonstrate the presence of „Nitrogen‟ as an essential constituent though present as a „chelating agent‟.
26. But, instead of concluding the classification on the outcome of the verification of the manufacturing process, in furtherance of the compliance of the Order of Hon‟ble supreme court, the leaned Commissioner analysed other evidences on record to examine whether presence of Nitrogen in the form of urea is an „essential constituent‟ of the products. The learned Commissioner examined the cost sheet of each of the products and the value of nitrogen in the total cost in accordance with the percentage of nitrogen present. Also, he has examined the Notification of the Government of Karnataka setting out standard in respect of micro nutrient fertilizers to conclude that the elements which make up micro nutrients are Zinc, Manganese, Boron which constitute as an essential constituent of the impugned product. Further, he has analyzed that by adding Nitrogen in the form of urea Page 30 of 33 E/1364/2010 with 23 others whether it would make nutrient an essential constituent and recorded that there is no mandatory requirement of adding a particular percentage of Nitrogen to the micro nutrient, hence, nitrogen is not a basic and fundamental constituent element for the products manufactured by the appellant. Also, he has considered the literature/ labels marketing the micro nutrient of these products by the appellant. After analyzing the said documents, he has held that these are all marketed as micro nutrient without any emphasis on the presence of Nitrogen as a fertilizing element. Taking note of all these factors into consideration, the learned Commissioner arrived at the conclusion that Nitrogen is not an „essential constituent‟ of the impugned product. Consequently, these products do not satisfy the chapter Note 6 of Chapter 31 to be classified as other fertilizers.
27. Assailing the said finding, the learned advocate for the appellant submits that as per Chapter Note 6 to Chapter subheading 3105, it is necessary that the micro nutrient in question is used as fertilizer and must contain N, P or K as an essential constituent. He has submitted that since the impugned products of the appellant are registered under the Fertilizer Control Order, 1985 have been recognized as fertilizers since 1994 and the Hon‟ble Supreme Court observed that the impugned product contains N, P or K and no percentage prescribed under Chapter 31 for a constituent to be termed as essential constituent, it is to be classified as fertilizer. Also, it has been submitted that addition of Nitrogen, Potassium and fertilizer element at the beginning of the process of manufacture is necessary for the product to be used as fertilizer and hence, it is to be considered as essential constituent of the Page 31 of 33 E/1364/2010 with 23 others subject product. In support of their submission that no percentage is prescribed in the Chapter Note, it is submitted that presence of Nitrogen in the product of fertilizer element is sufficient to classify the item under Chapter Subheading 3105. He has referred to the judgment of the Tribunal in the case of Commissioner of Central Excise & Service Tax, Hyderabad-IV Vs. Aries Agrovet Industries Ltd.: 2017 (7) GSTL 317 (Tri.-Hyd.); KPR Fertilizers vs. CCE and Service Tax, Visakapatnam:
2023 (384) ELT 216 (Tri.-Hyd.)
28. We do not find substance in the submissions advanced on behalf of the appellant in as much as the Hon‟ble Supreme Court in its judgment noted the said arguments and observed that presence of Nitrogen as chelating agent is not sufficient to classify the products as Fertilizer, rather the presence of Nitrogen should be as an „essential constituent‟ to satisfy the Chapter Note 6of Chapter 31. Thus, it is directed for examination of the process of manufacture so as to ascertain whether Nitrogen is present as an „essential constituent‟. The learned Commissioner after analyzing the process of manufacture and other aspects discussed above held that Nitrogen is not an essential constituent of the product and concluded that by addition of Nitrogen the products held to be PGR by Hon‟ble Supreme Court is not converted to Fertilizer classifiable under heading 31.05 of CETA, 1985. Therefore, the case laws cited by the Appellant in support of their submission that in absence of prescription of any percentage of Nitrogen, its mere presence in the products would make the same as other Fertilizers are not relevant to the facts of the case in view of the observation of the Hon‟ble Supreme referred as above.
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29. In the result, we uphold the finding of the Ld. Commissioner that the impugned goods merit classification under CSH 3808.20 (38089340) of CETA, 1985. Consequently, confirmation of demands with interest is also upheld. Since the issue relates to classification and interpretation of law, imposition of penalty under Rule 25 on the company and personal penalty under Rule 26 CER, 2002 on the Appellant Shri Mahesh G Shetty is unwarranted and accordingly set aside. The impugned orders are modified and the appeals filed by the Company are partly allowed to the extent mentioned above and Appeals filed by Shri Mahesh G Shetty are allowed.
30. Appeals are disposed off.
(Order pronounced in the open court on 22.12.2023) (D. M. Misra) Member (Judicial) (Pullela Nageswara Rao) Member (Technical) RA_Saifi Page 33 of 33