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TMI Blog1988 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept in respect of certain products with reference to which a remand was felt justified, the other products were not animal feed and were, therefore, not subject to duty. It is against these orders that the present appeals have been preferred by the Department. We may note at this stage that no appeals or cross-objections, have been preferred by the concerned respondents in respect of the order of remand by the Collector (Appeals). Therefore, in respect of products covered by the order of remand they will not be the subject matter of these appeals. 3. We have heard Smt. Zutshi for the Department in all these appeals. For the assessees the main arguments were submitted by Shri C.S. Lodha, Advocate. These were in the main adopted by the other respondents except by being supplemented in a small measure with reference to their respective appeals. 4. The products for consideration in these batch of appeals are de-oiled rice bran extraction, sesame seed extraction, rape seed extraction, rape-seed extraction and tapioca chips. It is in respect of mango kernels and salseed and babul seed extraction that the remand has been ordered by the Collector. 5. We shall consider the case rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term animal feed is not defined in the tariff. That would mean we will have to construe the term with reference to the dictionary meanings, meanings as given in text books and other publications, decisions of courts where the term came up for construction, market understanding or common parlance understanding of that term, etc. It would appear to us that the description in the trade documents would, in view of the above, deserve some attention and could not be ignored. We will consider the weight to be attached to such descriptions a little later. 7A. We shall first take into consideration the meaning attached to the term as reflected in the publications of Indian Standard Institution. It is well-settled that such publications furnish useful guide in understanding how a particular term is understood by the persons associated with the trade in the commodity concerned. In IS 9703-1980 (glossary of terms for animal feeds and feeding stuffs) it is found stated at para 0.2 as follows: In the field of animal feeds manufacturing industry a large number of feeding stuffs (ingredients) are utilised, which may be by-products of other industries and also subjected to certain processing b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an ingredient in compounded feeds. On a perusal of these Indian Standard Publications it becomes clear that the solvent extracted oilcakes as also de-oiled rice bran would be part of compounded animal feeds and an ingredient thereof, rather than the animal feed proper. 8. The question, therefore, is whether such oilcakes which are part of a compounded animal feed could be called animal feed in order to attract levy of duty. It is in this connection that the observations in Aries Agrovat Industries (supra) would be relevant. After discussing the part played by the various components that constitute a balanced animal feed the Tribunal observed by animal feed we understood a feed that not merely supplies all that the animal body needs for its sustenance and nourishment for health or for production such as fats, carbohydrates, proteins, vitamins, minerals but include in the term the bulk, the fibre, the roughages, etc. that form the total feed which an animal must feed upon if it is to be satisfied. This observation would be relevant in the present appeals also, since, as mentioned supra the products (de-oiled seeds and bran) would be fed to the animals as a protein supplement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g after solvent extraction and in 1931 the cakes were mainly ghany pressed or expeller pressed. These cakes are normally fed to the animals as a protein supplement since after the extraction of the oil the protein content becomes high compared to the other contents because the oil has been extracted. Extraction of oil being of a larger measure in solvent extraction than in expeller extraction the proportion of protein may not the same in the different varieties of cakes. We are quite sure whether that would also not make for some difference. In any event, it appears to us that the extracts in this book do not advance the case for the Department. At page 58 we find it stated that in India it is a common custom to feed the cow with the concentrates first and with roughages just prior and during the process of milking. In page 77 under Part II the products we are concerned with are clubbed under the heading by-products of Industries . Page 102 deals with oil-seeds. It is mentioned that oilseeds and cakes prepared from them are rich in fats, proteins, and mineral matter and are, therefore, much prized for feeding calves and milching cows. Again at pages 104 and 105 under the heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis Table : Concentrate Feeds. She pointed out that various types of meals are dealt with under the table and that would show that they are feeds. But it should be noted that they are described not merely as feeds but as concentrate feeds i.e. part of the regular feeds. 12. She also filed before us copy of pages 170 and 171 of another book and mentioned that the same was from the book Animal Nutrition. (May be it is the book Animal Nutrition by Leonard A. Maynard and J. K. Loosli to which book we find a reference at page 911 of the Encyclopaedia Britannica at the end of the Bibliography in that page). Here she referred to table 8.1 under the heading Calcium and Phosphorus content of some common feeds and pointed out that solvent extracted cotton seed meal is mentioned therein. But here we may note that at the commencement of the Section 8.14 it is mentioned the different concentrates and roughages vary widely in their content of calcium and phosphorus . It is thereafter that table 8.1 has been formulated mentioning the different articles that could be fed to an animal and giving the calcium and phosphorus content thereof. We may note that animal-carcass residue, is also one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peanut), (c) by-products from processing of sugar beats, sugarcane, and (d) animal and fish by-products; (2) roughages, including (a) pasture grasses, (b) hays, (c) silage, (d) rootcrops, and (e) straw, stayer (stalks). The composition of a few of the most commonly used feeds is shown in Tables 1 and 2. 15. She pointed out that in table 1 in this page the several types of oilcake meals are described under the heading concentrates commonly used as animal feed. We also find this passage in this book: High-protein meals : Vegetable seeds produced primarily as a source of oil for human food and industrial uses include soyabeans, peanuts (groundnuts), flaxseed, cottonseed, coconuts, oil palm, and sunflower seeds. After these seeds are processed to remove the oil, the residues, which may contain from 5 per cent to less than 1 per cent of fat and 20 to 50 per cent of protein, are marketed as animal feeds. It is no doubt stated at the end of this passage that these oilcakes (obtained after removal of the oil from the seeds) are marketed as animal feeds. We have to consider whether this passage would indicate the market understanding of the term animal feed. In the light of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be used to feed animals. But as earlier seen this would not by itself suffice to establish that it would for that reason be called animal feed proper. 17. Another decision relied on by her was Express Dairy Company Ltd. v. The Assessing Authority (1971 Vol. 28 STC 37). That case dealt with Gaur giri or gaur meal . The question was whether they fell under item 54 of Schedule B to Punjab Sales Tax Act, the item reading fodder of every type (dry or green) . Since the products in issue were proved to be fed to animals the Court held that they fell within that entry being fodder. This case also could not, therefore, support her contention. The next case she relied on is Bhagwan Oil and Potato Chips Factory v. State of UP (1975 Vol. 35 STC 514). Here again the entry for construction was in the UP Sales Tax Act reading cattle fodder including green fodder.... and oilcake . The issue in the case related to oilcakes. The issue was whether oilcakes which are used for further extraction of oil and are not used as cattle fodder were exempt from sales tax. The Revenue contended that oilcake would be exempt only if it is used as cattle fodder and not otherwise. It was this contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses of extraction. That is why when subsequently such solvent extracted oilcakes were permitted to be used for the feeding of the animals specifications had to be specially provided by the Indian Standard Institution so that the deleterious effect of the residual solvent could be avoided. It is the contention of the respondents that their solvent extracted cakes have not been treated for the removal of the toxic hexane used for the solvent extraction and, therefore, the cakes exported by them could not be used as animal feed as they would be deleterious to the health of the animals, apart from being highly foul smelling to put off the animals. It would be for the Revenue to show that a particular product is dutiable. Hence it would be for the Revenue to show that the cakes (meals) had been treated to remove the solvent so as to make the cakes fit for consumption by animals. There is nothing on record to show that such steps had been taken. For that reason also it may have to be held that on the facts and in the circumstances of these appeals, the oilcakes exported by these respondents have not been proved to be animal feed. 21. The respondents relied upon various certificates et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16) E.L.T. 310 (Tri.) = 1984 ECR 670. These decisions have held that tapioca chips would not be animal feeds and would not be liable to duty under heading 21-CTA. We see no reason to differ from the said decisions. 25. We are, therefore, satisfied that the Collector (Appeals) was correct in holding that the products in issue before us in these appeals were not animal feed to attract duty under heading 21-CTA. In the circumstances we feel that it is unnecessary to go into the other pleas (technical in nature) raised on behalf of the respondents. These were to contend: (i) the demands must fail as there was no preceding show cause notice; (ii) the fact that a hearing had been later given would not cure the defect; (iii) the show cause notice was further defective, in that no details were given; (iv) the orders of the Assistant Collectors were bad for the very reason that they ran contrary to an earlier decision of the Appellate Collector of Bombay within whose jurisdiction the Assistant Collectors concerned in these cases were functioning. (v) a subsequent notification cannot be relied upon to draw a presumption of dutiability in the preceding period. We are not going int ..... 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