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6. He further submits that the products manufactured by the appellant are classifiable as other fertilizers under chapter heading 3105 as all the items contain nitrogen, phosphorous and potassium or together. He submits that the adjudicating authority has not disputed the contents of the goods but only rejected the classification under CETH 3105 purely based on the reasoning that their goods are not covered under Fertilizers Control Order, 1995 (FCO). Sr. Counsel drew attention of the Bench to the Boards Circular dated 24.05.1990 at page 87 and another Circular dated 21/11/1994 at page 88 and Circular dated 19.05.1998 at page 86. He also drew attention to chapter note 2 to chapter 61 and HSN explanatory note 6 annexed at page 6 & page 22 and submits that as per note 6 for the purpose of heading 3105, the term other fertilizers applies only to products of a kind used as fertilizers and containing as an essential constituent, at least one of the element is nitrogen phosphorous or potassium. For the purpose of classification, he submits that FOC is not relevant nor chapter note specified give any reference to FCO. He further drew attention to para 13, 13.1 & 13.5 of the OIO No. 3/2015 dated 11/02/2015 and submits that the adjudicating authority erroneously came to a conclusion that these are Plant Growth Regulators.

7. Further he submits that these goods are not classifiable under 3824 and drew attention to the Explanatory Note sl.No. 47 at page 80 of the paper book and submits that in order to classify the goods as plant growth regulators, the goods should be consisting of products classifiable under chapter 25 ie. they are sand and clay, whether or not they contain small quantity of fertilizing elements nitrogen, phosphorous and potassium. Heading 3824 which relates to chemical products and preparations, not elsewhere specified or included in their case the products are not chemically defined products but are mixtures and they did not contain any soil or clay as media. It is only foliar spray applied on the plant. He also drew attention to FCO and as per the definition, fertilizers means any specific use or intended to be used as fertilizer on the soil or rock and includes mix of fertilizer, bio-fertilizers and organic fertilizers. Therefore, these products are rightly classifiable under 3105 as they are other fertilizers as classified by Boards Circular read with chapter note6.

10. Regarding Dosth, he submits that this product is supplied along with Allwin wonder plus, which is in combination pack. He further submits that Dosth is a wetting agent. He produced the sample of Alwyn wonder plus and submits that it contains small pouch of Dosth inside it. The main product Aliwin wonder plus is classifiable under 3105 and Dosth also is liable to be classified along with the main item. He relied on para 14 of the order 2012 284 ELT 691 (Tri.-Del.)

11. On the other hand, Ld. AR, Ms. Indira Sisupal, AC reiterated the findings of the OIO and SCN. As per FCO the definition of fertilizer means any substance used or intended to be used as a fertilizer of the soil and/or crop and specified in Part A or Schedule I and includes a mixture of fertiliser, the appellants products are not figuring in the schedule. Therefore, adjudicating authority has rightly held that these are not fertilizers as per FCO. She relied on the Tribunals decision in the case of Himgiri Metals Pvt. Ltd. - 2014 (308) ELT 735 (Tri.-Del.) and in the case of CCE, Bangalore Vs. Karnataka Agro Chemicals  2008 (227) ELT12 (S.C.). She also drew attention to the test report at page 103 and submits that test report does not show that the goods are fertilizers. Whereas, she also submits that in none of their packets, the appellants mentioned that they are fertilizers. She drew attention to the order of the Honble Supreme Court in the case of Karnataka Agro Chemicals (supra), wherein the Honble Supreme Court remanded the case to the adjudicating authority to determine whether the presence of nitrogen to classify as fertilizer and pleaded for remand of the case to the adjudicating authority. She also submits that as per the Notification No. 4/2006-CE dated 13.3.06 related to exemption of imported goods which are used in the manufacture of fertilizers and the said notification allows exemption of fertilizers as per the meaning under FCO and she submits that exemption is only allowed for fertilizers covered under FCO and not for any other items. Therefore, the adjudicating authority rightly classified the products as plant growth regulators under 3824. Dosth has been correctly classified under 3402 and in this regard she submits that the main pack Allwin wonder plus does not mentioned that Dosth is kept as free inside it. Therefore, they have not declared this Dosh as a combi-pack.

16. It is seen from the above circular, Board has categorically clarified what is fertilizer and what is micronutrients. At para-6 of the Boards Circular the Board has categorically stated that the Notification issued under FCO is irrelevant for deciding the classification under CET and also clarified FCO order the classification should be based on whether the goods are chemically defined compound only then the classification under 3105 is ruled out. Secondly, where the products consist of nitrogen phosphorous and potassium as laid down in the explanatory notes, it falls under other fertilizers. If these two conditions are not met only then the products can be excluded from chapter heading 31.05. As it is seen from the finding of the adjudicating authority and the test reports, the composition of the mixture contains either nitrogen, potassium or phosphorous, which has already been brought out in para-13 of the OIO dated 11.02.2015 and admitted that these products contain elements of N.P.K. single or combination. We find that Allwin Wonder plus and Allwin wonder contains potassium and nitro benzene which has elements of both Nitrogen and potassium. In the case of Allwin Top plus and Allwin Top contains Mono ammonium phosphate, and potassium humate which contains both phosphorous and potassium. In the case of Allwin Legume and Allwin Elixier both products contain nitrogen, phosphorous etc., which clearly confirms as other fertilizers as stipulated under Chapter note 6 of chapter 31 and confirms Boards Circular referred above.