2011 (3) TMI 105 - AT - Central Excise

Classification - As regards Heading 28.35 prior to 28.2.2005, it covered Phosphinates (hypophosphites), Phosphonates (Phosphites), phosphates and poly-phosphates whether or not chemically defined . Di-Calcium Phosphate falls under the category of phosphates - the classification of the products in dispute under Chapter 23 is in accordance with HSN Explanatory Notes and further the Customs Tariff Heading 28.35 had an entry for Calcium Hygrogenorthophosphate even under the 6 digit classification and thus the 8 digit tariff introduced in 2005 did not bring about any change in the scheme of classification under Central Excise - Decided in the favour of the assessee

Summary

Issues:
1. Classification of animal feed grade Di-Calcium Phosphate under different headings.
2. Reopening of the issue through subsequent show-cause notices (SCNs).
3. Interpretation of the 8-digit tariff introduced in 2005 and its impact on classification.

Analysis:

Issue 1: Classification of animal feed grade Di-Calcium Phosphate under different headings
The assessees were engaged in manufacturing Gelatin from animal bones, leading to the production of Di-Calcium Phosphate. Initially, the department classified the product under CET sub-heading 2302.00, distinct from Di-Calcium Phosphate derived from a chemical reaction. The Central Board of Excise and Customs (CBEC) later issued a circular classifying Di-Calcium Phosphate under CET sub-heading 2835.00, which was challenged in various judgments. The High Courts of Gujarat and Mumbai quashed the CBEC's order, leading to the withdrawal of earlier instructions. The Madras High Court also ruled in favor of the assessees, settling the classification under CET subheading 2302.00 for animal feed grade Di-Calcium Phosphate.

Issue 2: Reopening of the issue through subsequent show-cause notices
The department issued show-cause notices in 2007 and 2008, attempting to reclassify Di-Calcium Phosphate under a different heading based on the 8-digit tariff introduced in 2005. However, the Commissioner of Central Excise dropped the proceedings in 2008, prompting an appeal by the Revenue. The Tribunal considered the nature of the product, its processing from animal material, and its use in animal feeding to uphold the classification under Chapter Heading 23099090, rejecting the Revenue's appeal.

Issue 3: Interpretation of the 8-digit tariff introduced in 2005 and its impact on classification
The Tribunal analyzed the changes brought by the 8-digit tariff introduced in 2005, noting that the coverage under the previous Heading 23.02 and the current Heading 23.09 remained the same for products used in animal feeding. The Tribunal emphasized that the new tariff did not alter the classification scheme under Central Excise, citing HSN Explanatory Notes and the continuity in classification for Calcium Hydrogenorthophosphate. Consequently, the Tribunal upheld the classification under Chapter Heading 23099090, affirming the impugned order and rejecting the Revenue's appeal.

In conclusion, the Tribunal's detailed analysis reaffirmed the settled classification of animal feed grade Di-Calcium Phosphate under the appropriate heading, emphasizing consistency with past decisions and tariff interpretations.