9911796707
TMI Blog2001 (1) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... y his Order dated 6-10-1988 rejected the submissions made and confirmed the demands made in the show cause notice. On appeal being filed by the importers the Commissioner (Appeals) was pleased to restore the classification under sub-heading 2309.90 by the following order :- I have carefully gone through the records of the case and heard the appellant. It is the case of the department that the goods covered under Heading 05.11.91 and not under Heading 2309.90 for the following reasons: (1) As per Deputy Chief Chemist (DYCC) report dated 24-1-1996, the goods were found to be comprising of artemia cysts. (2) As per chapter note 1(b) of chapter 3, fish products unfit for human consumption are classifiable under chapter 5. (3) The imported goods do not conform to conditions stipulated in chapter note to chapter 23 and as such are not classifiable under chapter 23. (4) Artemia is specifically covered under heading 05119901.10 of ITC (HS) Classifications of Export and Import items and this classification is based on harmonised system of nomenclature. Therefore, goods are classifiable under Heading 0511.91. (5) Since chapter 5 provides more specific description than chapter 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned goods are prawn feed and not fishing bait. For legal purposes classification is to be determined according to the terms of the heading and the heading which provides the most specific description shall be preferred to headings providing a more general description. It has been contended by the appellant that these are not fertile eggs for hatching in their natural state. These had undergone substantial processing so as to have lost original identity and so as to make them fit as prawn feed. Animal feeds are specifically covered under Heading 23.09. However, lower authority has objected to this on the ground that the impugned goods had not been processed enough to have lost the essential characteristics of the original material and do not satisfy the condition of the chapter note. Appellant has countered this by stating that all the essential characteristics of the original brine shrimp eggs are no more there in the goods imported by the appellant. In the natural condition the shrimp eggs hatch within 24 hours and cannot be used as prawn feed. Owing to the processing undertaken by the foreign supplier the cysts are totally inactivated and are sent into a dormant state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case though Headings 05.11 and 23.09 do not merit equal consideration, heading 23.09 being preferable to 05.11, the Heading 23.09 shall prevail in case of a tie. 3. The revenue has filed this appeal on the following grounds :- (1) The learned Commissioner of Customs (Appeals) has failed to appreciate the fact that the goods have been described as SHRIMP EGGS only in the Commercial Invoice. Therefore, it is wrong to state that the goods are known as Prawn-feed in commercial parlance. (2) The Learned Commissioner of Customs (Appeals), while admitting that inedible fish eggs and roes are classifiable under Heading 05.11 and Headings which provide more specific description should be preferred to Headings which provide a more general description, has wrongly reached a conclusion that the Heading 23.09 is more specific than Heading 05.11. A plain reading of the Heading 05.11 makes it abundantly clear that this is more specific Heading than 23.09. Heading 05.11 is specific to all products of fish or crustaceans whereas Heading 23.09 covers all products used for feeding animals, whether of animal origin or plant origin subject to the provisions of Chapter Notes to Chapter 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eggs (prawn feed). This prawn feed is fed to the young prawns from the initial stages and as soon as the prawns are able to grasp and consume large quantities of food particles, the prawn larvae in the early stages have to eat up to 50 brine shrimp eggs per day. (ii) Brine shrimp eggs are collected in cyst form from salinas located worldwide, processed and packed to be sold commercially. They come in sealed tin cans. Once the can is opened, the brine shrimp eggs are kept in a dry and free of exposure to the humidity. The hatch rate will be greatly infected if not kept in a dessicntor or other dry container. Once the can is opened the contents should be used rapidly. (iii) No feed has been as effective or as easy to culture and feed to the young prawns as the brine shrimp eggs. This prawn feed meets all requirements of a good food source. It is sufficient in fatty acids, proteins and is nutritionally complete. Some results have shown that young shrimps have grown larger and healthier rapidly when fed with brine shrimp eggs. There is no supplement for this feed. The feeding regime is a closely monitored and specifically timed manner which is vital for the growth of the prawns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted position the goods under import are not edible, therefore they are not excluded from chapter 5 by note 1. Therefore the classification of goods as classified under heading 0511.99 would be the appropriate classification of the goods under import; in the condition in which they are imported. We are reinforced in this view of the classification of these goods, as the goods under import, are packed brine shrimp eggs supplied and would fall under heading 05.11 of the HSN and the Customs Tariff which is based on the HSN and not larvae which are prawn feed . (d) We have examined the alternative classification under chapter 23 of the Customs Tariff note under Chapter 23 provides as under : Heading No. 23.09 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing . and the headings read as 23.09 - Preparation of a kind used in animal feeding. 2309.10 - Dog or cat food, put up for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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