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TMI Blog2005 (1) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty (SAD) amounting to Rs. 21,15,601.00 (Rupees twenty-one lakh fifteen thousand six hundred and one). He also demanded the interest on the differential duty including SAD in terms of Section 28AB of the Customs Act, 1962 from the appellants. He imposed a penalty of Rs. 98,86,531.00 (Rupees ninety-eight lakh eighty-six thousand five hundred and thirty-one) along with applicable interest on the appellant-company. He also imposed a personal penalty of Rs. 5.00 lakh (Rupees five lakh) each on Shri Vikram Jaitha, Ex-Director of the Company and Shri R.B. Jaitha, Chairman and Director of the said Company, under Section 112(a) of the Customs Act, 1962. 2. The dispute in the present case relates to the classification of Brine Shrimp Eggs imported by the appellants. The import was made by the appellants prior to the impugned Order of the Commissioner when the item in question, i.e. Brine Shrimp Eggs used to be classified under Heading No. 2309.90 of Customs Tariff Heading, as Prawn Feed . It was felt by the Revenue that the item in question should be correctly classifiable under Customs Tariff Heading 0511.99 which attracts higher rate of duty. On party s representation, the Revenue per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Pvt. Ltd., Kolkata and its Directors - Shri R.V. Jaitha and presently, Ex-Director, Shri Vickram Jaitha are also liable for penal action under Section 112 read with Section 114A of the Customs Act, 1962. 6. After hearing the parties and following the principles of natural justice, the Commissioner of Customs passed the Order referred to above. 7. Artemia Cyst are necessarily to be hatched first and only hatched Artemia Nauplii are fed to Prawn Larvae. The Brine Shrimp Eggs are collected in Cyst form Salinas worldwide, processed and packed for easy transportation. After harvesting, these undergo a lot of process which inactivate their development and only in controlled laboratory condition, the seeds will hatch into live feed for Prawn. These are complete food for Prawn and sufficient in Fatty Acid, Protein etc. These have got no other use in India except in Hatcheries. 8. It is, therefore, clear that the goods as imported need a lot of careful processing before these are fed to Prawn. Artemia Cysts are, in fact, inactivated eggs imported in dehydrated and dormant condition in sealed can and what are fed to Prawn are active Napulii produced after careful processing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products of fish or crustaceans, molluscs or other acquatic invertebrates; dead animals of Chapter 3. 0511.99 - Other (c) From our findings herein above and the 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 resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also reduce the personal penalty of Rs. 5.00 lakh (Rupees five lakh) each on Shri Vickram Jaitha, Ex-Director of the appellant-company, and Shri R.B. Jaitha, Chairman and Director of the appellant-company, under Section 112(a) of the Customs Act, 1962, to a sum of Rs. 2.00 lakh (Rupees two lakh) each. But for the above modification, the appeals are otherwise rejected. Cross Objections filed by the Revenue also stand disposed of. Sd/- (V.K. Jain) Member (Technical) 15. [Contra per : Archana Wadhwa, Member (J)]. - I have gone through the Order proposed by my learned Brother, Shri V.K. Jain, Member (Technical) and I agree with him that the issue of classification of Brine Shrimp Eggs stands concluded by the West Zonal Bench of the Tribunal as falling under Heading 05.11 as against the Heading 23.09 claimed by the importer, as reported in 2001 (129) E.L.T. 502 (Tri. - Bom.). The appeal against the above Order was not entertained by the Hon ble Supreme Court, as observed in the Order of learned Member (Technical), and as such, the issue is finalised and is required to be followed by us. 16. However, I find that during the course of arguments, learned Advocate appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opting of the same classification is reflective of their bona fide impression, and cannot be made the basis for imposition of penalties upon them. In any case, the imposition of individual penalties upon the Ex-Director and Chairman, is not justified in the absence of any mala fide role attributable to them. 19. The matter is being remanded by me to the Commissioner to consider the fact of imposition of personal penalties upon the appellants in the light of the outcome of his decision on the availability of the Notification in question and in the alternative, in the light of the observations made in the preceding paragraphs. Dated 30-1-2004 Sd/- (Archana Wadhwa) Member (Judicial) DIFFERENCE OF OPINION Whether the duty is required to be confirmed against the appellants and the penalties reduced as held by the Learned Member (Technical), or the matter is required to be remanded to the Commissioner as held by the Learned Member (Judicial). Registry is directed to place the matter before the Hon ble President, CESTAT, New Delhi for doing the needful on the above question. Sd/- (V.K. Jain) Member (Technical) Dated 30-1-2004 Sd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial) has also mentioned in her order that the matter is remanded by me to the Commissioner to consider the fact of imposition of personal penalties upon the appellants in the light of the outcome of his decision on the availability of the Notification in question and in the alternative, in the light of the observations made in the preceding paragraphs. The matter has been referred to me for limited purpose. So, I am not inclined to give my opinion on the question of penalty. 26. Registry is directed to place the matter before the Hon ble President, CESTAT, New Delhi for necessary orders. Sd/- (M.P. Bohra) Member (Judicial) 27. [Order per : Archana Wadhwa, Member (J)]. - Before I record the final majority order, I would like to observe that in paragraph 19 of the order recorded by me, the matter was also remanded for deciding upon the imposition of personal penalties, upon the appellant either based upon applicability of the notification or alternatively in the light of the observations made in the preceding paragraphs i.e para 18. Learned third Member has concluded that the matter has not been referred to him on the point of penalty. However, I feel tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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