1997 (10) TMI 236 - AT - Central Excise

Summary

Issues:
Classification of di-calcium phosphate animal feed grade under sub-heading 2302.00 of CETA, 1985 versus sub-heading 3103.00 as claimed by the Department.

Analysis:
The appeal before the Appellate Tribunal CEGAT, Mumbai involved the classification of di-calcium phosphate animal feed grade by the Commissioner of Central Excise & Customs, Vadodara against the order of the Commissioner of Central Excise, Ahmedabad. The respondents had initially classified the product under sub-heading 2302.00 of CETA, 1985, but the Assistant Commissioner of Central Excise, Anand proposed a different classification under sub-heading 3103.00. The Commissioner (Appeals) upheld the classification under sub-heading 2302.00, leading to the present appeal. The Department argued that the product should be classified under Chapter 28 based on the HSN explanatory note, while the respondents relied on previous Tribunal decisions and the Supreme Court ruling to support classification under Heading 2302. The Department's new ground for classification under Chapter 28 was deemed impermissible by the Tribunal as it was not raised earlier and involved both legal and factual considerations.

The Department contended that the product should be classified under Chapter 28 due to the HSN explanatory note, which excludes certain products from Heading 23.09. The Department argued that the Tribunal should determine the correct classification based on existing facts, emphasizing the specificity of Heading 28.35 for phosphate products. However, the Tribunal found the Department's new classification ground unacceptable at this stage, noting that the issue had not been raised before and the consistent classification of di-calcium phosphate animal feed grade under Heading 2302 in previous Tribunal decisions.

The respondents, on the other hand, relied on the Tribunal's previous decisions and a Supreme Court ruling to support the classification of di-calcium phosphate animal feed grade under Heading 2302. They argued that the Department's new classification ground was unwarranted at this stage, especially considering the favorable decisions in their favor by the lower authorities and the consistency in Tribunal decisions. The Tribunal upheld the classification under sub-heading 2302.00 of CETA, citing the previous decisions and the lack of merit in the Department's new classification argument.

In conclusion, the Appellate Tribunal CEGAT, Mumbai rejected the appeal, affirming the classification of di-calcium phosphate animal feed grade under sub-heading 2302.00 of CETA, 1985. The Tribunal emphasized the consistency in previous decisions, the impermissibility of raising new grounds at this stage, and the lack of merit in the Department's argument for classification under Chapter 28.