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TMI Blog1999 (5) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... duty for the past five years. A corrigendum dated 7-1-1985 was also issued in which duty demanded was specified to Rs. 41,78,006.71 for the period from 11-9-1979 to 10-9-1984. The Collector, Central Excise, under the impugned order confirmed the demand and imposed a penalty of Rs. 5 lakhs, holding that the impugned product was not insecticides as according to Condensed Chemical Dictionary by G. Hawley, insecticide is a type of Pesticide designed to control inspect life that is harmful to man either directly as disease vectors, or indirectly as destroyers of crops, food products or textile fabrics; that the appellants were selling the impugned product as a plant harmone used for increasing the yield or crops; that Naphthylactic Acid has been described in condensed Chemical Dictionary as inducing rooting of plant cuttings; spraying of apple trees to prevent early drop ; that it is not mentioned anywhere as to what insects and in what dilution it kills or eleminates the insects. The Collector also mentioned in the impugned order that against Item 5 of the Application for registration regarding Plant disease, insects and other noxicus animals and weeds against which the product is int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills insects and does not cover disinfectants; that accordingly in Agromore case, the Tribunal held that Plant growth regulators were not insecticides. The ld. Counsel, further, submitted that the Tribunal, in C.C.E. v. Paushak Ltd. - 1991 (52) E.L.T. 420 (T), disagreed with the decision in Agromore case and held that even though the Appellants therein had good case that Plant growth regulator was covered under term pesticide, but it had to follow Agromore decision; that the Supreme Court in Bombay Chemical Pvt. Ltd. v. C.C.E. - 1995 (77) E.L.T. 3 (S.C.) overruled Tribunal s decision holding that the exemption notification should not be given narrow meaning i.e. the term insecticide covers only products that kill insects, but also cover disinfectants capable of killing bacteria, etc. The ld. Counsel thus contended that Agromore decision which followed Tribunal s decision in Bombay Chemicals case is not a good law and the plant growth regulators are insecticides as per decision in Paushak case (supra). He referred specially to the observation of the Appellate Tribunal in para 8 of the Paushak case which is extracted below : In our considered opinion, therefore, there is a good c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or preparation is intended for purposes other than preventing, destroying, repelling or mitigating any insects, rodents, fungi weeds and other forms of plant or animal life not useful to human beings. He contended that it is thus apparent that their product does not kill any insect. Further their literature describes the impugned product as a plant harmone spray and it has uses such as : (a) inducing flowering and preventing shedding of buds flowers and fruits, (b) enlarging fruit size, and (c) increasing the yield per acre and improving the quality. He also mentioned that judgment of the Supreme Court in Bombay Chemical s case 1995 (77) E.L.T. 3 (S.C.) is not applicable as in that case the Tribunal had found that the impugned product disinfectant fluids were capable of killing various bacteria and fungi which is not so in the present case. Finally on merit he submitted that the Appellate Tribunal in the case of Bakul Chemicals Pvt. Ltd. v. C.C.E., Baroda - 1999 (109) E.L.T. 822 (T) = 1999 (30) RLT 269 has held that Alpha Naphthylactic Acid is a plant growth regulator classifiable under sub-heading 3808.90 of the Schedule to the Central Excise Tariff Act and not classifia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teria and fungi. In the present matter before us, the Appellants have not adduced any evidence even to show that the impugned product is capable of killing bacteria or fungi or insect. Accordingly even on the basis of test laid down by the Supreme Court, their product which is a plant hormone spray, meant for inducing flowering, enlarging fruit size and increasing yield per acre, is not covered by Sl. No. 20 of Notification No. 234/82 which reads as under : Insecticides, weedicides and fungicides . Similar was the view of the Tribunal in the case of Bakul Chemicals, relied upon by ld. DR in which Tribunal held that Since the relevant criterion laid down by the Supreme Court for considering something to be a pesticides or insecticides has not been fulfilled by the disputed product, ANAA cannot be held to be an insecticide or pesticide, therefore, it is not entitled to the benefit of Notification No. 234/82 at Sl. No. 18 of the Table appended thereto. Following the ratio of this decision, we hold that, on merit, the benefit of Notification No. 234/82 is not available to the impugned product of the Appellants. 7. Regarding limitation under Section 11A(1) of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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