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TMI Blog2009 (2) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the impugned orders vide which the classification of the product ordered under Chapter Sub-Heading No. 3823.11.12, is liable to be set aside and we do so. We direct the lower authorities to classify the product under Chapter Sub Heading 1511.90.90 of the Customs Tariff Act, 1975 and finalize the bills of entries which were provisionally assessed. Needless to say that the consequential relief, if any, in accordance with law, will be available to appellants on finalization of the said bills of entries. - C/576-579/2008 - 271-274/2009 - Dated:- 24-2-2009 - Shri C.S. Lodha, Advocate, for the Appellant. Shri V. Poorna Chandra Rao, SDR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - All these appeals are directed against Orders-in-Appeal No. 27 to 30/2008 (V-II) Cus., dated 30-4-2008. 2. Since the issue raised in all these appeals are same and in respect of the very same assessee, we dispose off all the appeals by a common order. 3. The brief facts that arise for consideration are that the appellants imported Crude Palm Stearin through Kakinada Port and filed Bills of Entry declaring the goods as industrial grade Crude Palm Stearin falling un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had rightly noticed the distinction between products which are fractions of Palm Oil classifiable under Chapter 15 and products which are Fatty Acids classifiable under Chapter 38, Commissioner (Appeals) ought to have appreciated that the distinction between two products was the presence of triglycerides which was determined by ester value of the product in question, it was categorically directed by the CBEC that the ester value should be determined to find whether the product in question is classifiable under Chapter 15 or Chapter 38. It is his submission that though it was incumbent on the department to subject the goods to chemical analysis to ascertain the ester value, the Chemical Examiner at Visakhapatnam did not do so. It is submitted that, Chemical Examiner determined Free Fatty Acid, which clearly indicated that the product had triglycerides. The Load Port Analysis clearly shows the ester value of the product in question. The learned Commissioner (Appeals) ought to have appreciated that the lower authorities had clearly ignored the directions of the CBEC and, therefore, the impugned order deserved to be set aside. Since the learned Commissioner (Appeals) failed to appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) failed to appreciate that the same product, CPS, was being imported not only by the appellant but by various other soap manufacturers in the country. He would submit that data with regard to import was also submitted to the authorities to show that over one lakh tonne of CPS was imported and the said product was classified under tariff item 15 along with copies of bills of entries. However, the learned Commissioner (Appeals) without appreciating the consistent practice followed for past two decades by the Customs authorities in different parts of the country and also the current practice followed in different Commissionerates classifying the product under tariff item 15, dealt with this aspect by observing that it was not his function to ensure uniformity of the assessment. It was submitted that the reason why such practice was shown to the learned Commissioner (Appeals) was to demonstrate to him that at all other locations ester value of the product was analysed and thereafter the goods were classified under Chapter 1-5; At Kakinada, no such determination was carried out as directed by the CBEC and yet, the product was classified under Chapter 38; Failure to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported are correctly classifiable under Chapter heading No. 1511.90.90 and not under 3823.11.12 as claimed by the revenue. 6. The learned SDR on the other hand would submit that once there was a specific entry in 8 digits Customs Tariff Act, 1975, there is no need to go into any other issues. He would draw our attention to the Entry No. 3823.11.12 and submit that it very clearly covers RBD, the goods imported by the appellants i.e., Crude Palm Stearin. It is his submission that on mere perusal of the Chapter Heading 1511.90.90 as claimed by the appellant, it would indicate that the goods sought to be classified in this Chapter Sub Heading has to be Crude Oil, but not chemically modified. He would submit that the Chemical Examiner's report clearly indicates that they are chemically modified. He would submit that the findings given by the learned Commissioner (A) are correct and need not be interfered with. 7. We have considered the submissions made at length by both sides and perused the records. 8. The issue involved in this case is regarding the classification of the product imported "Crude Palm Stearin". The appellants have claimed the classification under Chapter sub h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted no meaning can be ascribed to the entry. Such can never be the intention of the legislature and meaning has to be given to the specific entry. In view of this, there is really no reason to resort to the interpretation of 3(b) applying principles of predominance of material which gives to the product the essential characteristic. The rule is required to be resorted only when there is a possibility of the goods being classified under more than one entry. Specific entry always prevail over, general entry and the goods are required to be classified under Ch. 3823 11." It can be noticed from the above reproduced order of the learned Commissioner (A) that he has totally not considered the factual position while rejecting the appeal. 8.1 We would like to first read the chemical test report of the chemical examiner of the imported product, which is as under: It can be noticed from the above reproduced chemical test report that the Chemical Examiner has only ascertained the free fatty acid contents of the sample, which according to him 23.2%. He has not considered nor has he arrived at the balance contents of the sample which is 76.8%, whether it is triglycerides or otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of Palm Stearin had issued the following clarification. Palm Stearin - Classification of - Clarifications Circular No. 81/2002-Cus., dated 3-12-2002 F. No. 528/87/2001-Cus (TU) Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject: Classification of Palm Stearin - Regarding. I am directed to refer to the subject mentioned above and to say that a doubt has been raised as to whether palm stearine is classifiable under CTH 15.11 or 28.23 of the Customs Tariff. It has been reported that palm stearine, which is a fraction of palm oil, is being classified under heading 15.11 of the Customs Tariff at some ports and under 38.23 at others. 2. Heading 15.11 covers palm oil and its fractions, whether or not refined, but not chemically modified. According to HSN Explanatory Notes, Chapter 15 covers vegetable or animal fats and oils and their fractions whether used as foodstuffs or for technical or industrial purposes (e.g., the manufacture of soap, candles, lubricants, varnishes or paints). Headings 15.07 to 15.15 of this Chapter cover the single (i.e., not mixed with fats or oils of anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not possess the same. 6. It is requested that goods declared as 'palm stearin' or 'crude palm stearin' may be assessed keeping in view the above advice received from CRCL. The goods may be got chemically examined to verify whether they are glycerides (ester) of fatty acids (15.11) or a mixture of fatty acids (28.23). 7. Any difficulty in implementing the above instructions may be brought to notice of the Board. 8. Please acknowledge receipt of this circular." It can be noticed from the above, that the CBEC Circular was seized with the classification of the very same product and at paragraph 5 very clearly clarified that triglycerides of fatty acids and free fatty acids are two different organic compounds and distinguishable by chemical tests i.e., by determining the ester value. After giving such a clear-cut clarification at Para 6, it has been further clarified that the goods need to be assessed keeping in view the above advice given by the CRCL. We find that the lower authorities have not sought the ester value of the samples, to arrive at correct classification. In the absence of any other contrary evidence, the evidence as is produced by the appellant before the low ..... X X X X Extracts X X X X X X X X Extracts X X X X
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