9911796707
TMI Blog2010 (10) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... pal, through the Land Customs Station, Sonauli on the Indo-Nepal Border in the State of Uttar Pradesh is exporting Vitamin E powder as poultry feed supplement importing it from foreign countries in Nepal. Respondent M/s. Sonam International by misdeclaring the Vitamin E powder as "Poultry Feed Supplement" AV-117 of Nepali Origin, vide Bill of Entry No.487/02, dated 1.12.2002 and cleared on 21.5.2003, through the Land Customs Station of Sonauli, on the Indo-Nepal Border in Uttar Pradesh, loaded on a truck bearing Registration No.;RJ-02/G-3837, were detained by the Officers of the Directorate of Revenue Intelligence (DRI), Lucknow on 26.5.2003 in pursuance of powers conferred by Section 110 of the Act. 4.During the course of investigation, DRI found that poultry feed supplement were imported by misdeclaration in violation of conditions stipulated in the Custom Notification No.40/2002-Cus dated 12.4.2002 and in contravention of provisions of Customs Notification No.9/96-Cus (NT) dated 22.1.1996, issued under Section 11 of the Act and the provisions of Revised Protocol to the Indo-Nepal Treaty of Trade. 5.In follow up action DRI, Surat found inter alia that the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irms namely, M/s. Baadar Schultz Laboratories at Daman and M/s. Sonam International at Mumbai. 7.In follow up action, the Officers of DRI at Surat detained 2225 kgs. of Vitamin E Powder, which according to the appellant, was misdeclared as "Poultry Feed Supplement-AV 110" in the Bill of Entry No.5509/03, dated 27.2.2003 filed for clearance of the same at LCS, Sonauli, at factory premises of M/s. Baadar Schultz Laboratories, Daman on 30.5.2003 under the drawal of proper Panchnama. The goods seized were sent for test and analysis to the Central Revenue Control Laboratories, New Delhi on 23.7.2003 and to M/s. Analytical Testing Corporation, Lucknow on 6.6.2003. 8.During investigation by DRI, Sri J.R. Nayak, CEO (Tech) of M/s. Baadar Schultz Laboratories, informed the DRI Officers on 20.1.2003 inter alia that he was handling the production work at the factory whereas Shri Nailesh Shah sits at Mumbai and having three partners viz., Kirtilal Shah and his two sons Nailesh & Kaplesh in M/s. Daadar Schultaz Laboratories. These three partners are also partners in other firms viz., M/s. Sonam International, M/s. Sheetal Pharma and M/s. Sheetal Enterprises whose Offices are loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation well within reasonable time and to complete the same within 8 weeks from the date of order. The Bombay High Court has given liberty to adjudicate the matter with due compliance of principles of natural justice. The Court also directed the petitioner to cooperate with the investigation. The goods were released subject to furnishing of bank guarantee of Rs.5,50,000/- and and a bond for Rs.7,50,000/-. 13.In spite of specific observations made by Bombay High Court, various persons relating to present controversy like Sri Pradeep Pathak, the Authorised Representative of M/s. Sonam International at Sonauli, Sri Nailesh Shah initially, did not appear in spite of service of notice. Because of non-cooperation, the Revenue moved an application in Bombay High Court for extension of time to investigate the matter. 14.Later on, in response to summons issued under Section 108 of the Act, Sri Pradeep Pathak, Authorised Representative of M/s. Sonam International, appeared before the Senior Investigating Officer, DRI, Lucknow on 2.1.2004. He stated that he does work for the Company in the capacity of Authorised Representative. He admitted that Shri Ashok Agarwal, Shri Nai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0" in the column 6 of the said Bill of Entry meant for description of goods. The Vitamins and "Poultry Feed Supplement" are different products and have different identity under the Customs Tariff, while the former is classifiable under Chapter 29, the latter is classifiable under Chapter 23. 18.Under Explanatory Note to HSN (Chapter 23), the characteristic feature of animal feed supplement is that they essentially contain products from each of the three group of nutrients i.e., "energy" nutrients consisting of high carbohydrates, "body building" protein rich nutrients or minerals and "functional" nutrients like vitamins, trace elements and antibiotics. 19.DRI found that in the copy of Invoice No.50134 dated 25.3.2001 of M/s. Chr. OLESEN & Company GMBH (Germany) by which M/s. Anivet Industries, Nepal, have imported Vitamin-E into Nepal from Germany, contains the indication made by German Supplier in four digit HSN Code as 2936. 20.Copy of other invoice No.03SIN1846 dated 16.4.2003 of M/s. Synchem International Company Limited, China, by which M/s. Anivet Industries, Nepal have imported Vitamin-E into Nepal from China, contains the indication of Chinese suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and penalty was also imposed under Section 112 of the Act. 28.Confessional statement has been made by Sri Pradeep Pathak on 2.1.2004 and 3.1.2004 to the effect that respondent M/s. Sonam International has been engaged in smuggling Vitamin-E from Nepal and M/s. Anivet Industries does not possess any manufacturing unit of poultry feed supplement. The goods under the garb of poultry feed supplement Vitamin-E is smuggled in India abusing the Indo-Nepal Treaty. It has also been stated by Sri Pradeep Pathak that M/s. Anivet Industries imports Vitamin-E from overseas and exports to M/s. Sonam International in India. Sri Pradeep Pathak retracted the statement extracted from him, vide letter dated 8.1.2004 but adjudicatory authority relied upon his statement as trustworthy and the facts and incidents are being supported by invoice dated 25.3.2001 of M/s. Chr. OLESEN & Company GMBH (Germany), showing the classification of goods imported by M/s. Anivet Industries, Nepal as Vitamin-E 50% and four digit HSN Code as 2936 respectively, the test report showing 49.57% ww Vitamin-E. 29.Sri Pradeep Pathak stated that entire work of M/s. Sonam International is looked by Nailesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early transpire that DRI Officers were investigating the case and were having prior cogent information that some smuggled of third country origin were being imported from Nepal to India by misdeclaring the same. The belief turned into truth after investigation and seizure of goods. The appellate authority further relied upon Section 111 of Customs Act, 1962 with regard to confessional statement and abuse of Indo-Nepal Treaty of Trade to import third country origin goods in India. It has further been held by the appellate authority that goods were imported in contravention of Notification dated 12.4.2002 and under Section 112 of Customs Act, 1962, call for for penal action. The papers were fabricated and third country origin goods were imported under the garb of poultry feed supplement. 34.Feeling aggrieved against the order of appellate authority, respondent approached the Tribunal and the Tribunal by the impugned order dated 5.4.2005, reversed the finding recorded by the authorities below. Questions of Law:- 35.The present appeal was admitted and later on, additional questions were framed in pursuance of power conferred by Section 103 of the Act. The question of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they have lost essential characteristics of the original material, other than vegetables waste, vegetable residues and by-products of such processing. Annexure No.14 to the supplementary affidavit filed on behalf of Nailesh Shah authorised representative of the respondent firm M/s. Sonam International, shows that the animal fodder includes various items under the heading 23.01, 23.02 and so on. Under column of description of Article, various items have been given like flours, meals and pellets of meat or meat offal of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves; bran, sharps and other residues, whether or not in the form of pellets, derived from the sifting, milling or other working of cereals or of leguminous plants. Chapter 23 contains varieties of animal feed supplements under various headings which does not contain Vitamin-E as separate item. 39.The Government of India issued Notification dated 26.3.1996, with regard to classification of animal feed supplement under heading No.23.02 or 29.36 or Chapter 30 which provided that classification of each product being claimed as animal feed supplement, may be decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 43.The circular issued by the Government of India dated 26.3.1996 provides that where animal feed supplements are just inter-mixtures of vitamins only without other ingredients, except solvents, stabilizers or anti-oxidants, cannot be classified under heading 23.02 even though they are used as animal feed supplements. The Board had observed that such inter-mixtures of vitamins are specially covered under heading 29.36. The circular further provides that animal feed supplements use vitamins, pro-vitamins, amino-acids, anti-biotics, "Coccidiostats" etc., in very small quantities (micro-quantities) and that the feed supplements contain other organic and inorganic feed ingredients as well. Such micro nutrients do not have any independent identity as pure chemicals, that they cannot be easily separated into individual pure chemicals, nor do they conform to standards laid down for medicaments. For these reasons, the circular provides that preparation containing active substances (vitamins or provitamins, amino-acids, antibiotics, coccidiostats etc.) along with the said carriers would fall under Heading 23.02 of the CET provided such preparations are of a kind used in animal fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se jurisdiction vested in it and the goods seized, cannot be termed as animal feed supplement and shall not fall under the heading No.23.09 but it shall fall under the heading No.29.36 as held by two authorities below. 50.Sri Chauhan has also submitted that appeal is very well maintainable because of the fact that respondent importer had committed fraud by importing Vitamin-E under the garb of animal feed supplement by misdeclaring on the basis of fraudulent, manufacturing document which shall disentitle respondent to claim benefit on the basis of clearance given by the Custom at Sonauli at the time of entry of goods. 51.It has been vehemently argued that M/s. Anivet Industries does not have got manufacturing unit in Nepal to produce animal feed supplement. Rather, it imports Vitamin-E of foreign origin and exports to India under the mask of animal feed supplement. Sri Rajesh Singh Chauhan further submitted that confessional statement retracted almost after a week or six days, shall not loose its sanctity being corroborated by other evidence and surrounding facts and circumstances. He would submit that it is not a case of routine or regular assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that poultry feed supplement AV-110 imported from Nepal with due clearance by Nepal authorities under the terms of Indo-Nepal Treaty, cannot be placed against heading No.29.36 of Customs Tariff Act, 1975. He further submitted that premixtures containing vitamin-E, cannot be classified under heading No.29.36 and there is no evidence that such premixtures are brought and sold as only vitamin-E. 54.Sri Rajesh Singh Chauhan for appellant relied upon the cases reported in (1995) 3 SCC 454: Collector of Central Excise, Shillong. Vs. Wood Craft Products Ltd.; 1997 (89) E.L.T. 646 (S.C.) Surjeet Singh Chhabra. Vs. Union of India; 1996 (83) E.L.T. 258 (S.C.): Naresh J. Sukhawani. Vs. Union of India; (1995) 3 SCC 454: Collector of Central Excise, Shillong. Vs. Wood Craft Products Ltd. 55.Sri Naveen Mullick for respondent relied upon the case reported in 1997 (90) E.L.T. 241 (S.C.): K.I. Pavunny. Vs. Asstt. Collr. (HQ), C. Ex. Collectorate, Cochin; 2001 (44) RLT 695 (CEGAT-Mum.): Rani Sati Fabric Mills (P) Ltd. Vs. Commissioner of Central Excise, Mumbai-III and Vice versa; 2000 (120) E.L.T. 280 (S.C.) Ass. Collr. Of C. Ex., Rajamundry. Vs. Duncan Agro Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been compiled with. Under Section 2 (39), the word, "smuggling" has been defined in relation to any goods which means any act or omission which will render such goods liable to confiscation under section 111 or section 113 of the Act. 58.Chapter IV of the Act empowers the Central Government to prohibit the importation or exportation of goods as may be specified in a notification. The purpose has been given in sub-section (2) of Section 11 under the Chapter IV. Chapter IV-A provides detection of illegally imported goods and prevention of the disposal thereof. The word, "illegal import" has been defined under Section 11-A (a) of the Act, as the import of any goods in contravention of the provisions of this Act or any other law for the time being in force. Under Section 11-B of the Act, the Central Government has been empowered to notify the goods. Section 11-C provides that it is the statutory duty of every person possessing the notified goods to intimate the place of storage etc. The notified goods are to be evidenced by v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for a warehousing or vice versa. 63.Section 47 deals with the clearance of goods for home consumption and provides that where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. It shall be appropriate to reproduce Section 17, 46 and 47 of the Act as under: 17. Assessment of duty.---(1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2)Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3)A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report, as the case may be: Provided that the [Commissioner of Customs] may in any special circumstances permit a bill of entry to be presented before the delivery of [such report]; [Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel or the aircraft by which the goods have been shipped for importation into India is expected to arrive within thirty days from the date of such presentation.] (4)The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal to High Court.---(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2)The Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be --- (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hundred rpees where such appeal is filed by the other party; (c) in the form of memorandum of appeal precisely stating therein the substantial question of law involved. (3)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4)The appeal shall be heard only on the question so fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y judgment of the High Court delivered--- (i)in an appeal made under section 130; or (ii)on a reference made under section 130 by the Appellate Tribunal before the 1st day of July, 2003; (iii)on a reference made under section 130-A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment." Thus, a combined reading of Section 130 and Section 130-E of the Act reveals that whenever question relates to the determination of rate of duty of custom or value of goods for assessment, the appeal shall lie to Hon'ble Supreme Court but for rest of the matter, the appeal shall lie to the Hig Court. The appellate power of Hon'ble Supreme Court may be exercised before the establishment of National Tax Tribunal. 66.In view of the above, the submission of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or document which is false or incorrect in any material particular, in the transaction of any business for the purpose of this Act, shall be liable to a penalty not exceeding five times the value of goods. The provisions of Section 114-AA inserted by the Act 29 of 2006 with effect from 13.8.2006, makes existing law more stringent with intention to check the import of goods by unlawful means. (c) Section 117 empowers the authorities to levy the penalty in the event of non-compliance of any provisions of the Act with which it was his duty to comply, where no express penalty is elsewhere provided for such contravention or failure. 70.Section 123 of the Act provides that burden to prove that goods are not smuggled, shall lie on the person from whose possession such goods are seized. 71.It shall be appropriate to take note of Section 132 of the Act under Chapter XVI, which provides that whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reasons to believe that such declaration, statement or document is false in any material particular, sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n indicated by the Central Excise Tariff Act, 1985, vide, (1995) 3 SCC 454: Collector of Central Excise, Shillong. Vs. Wood Craft Products Ltd. 75.Accordingly, while interpreting the heading as to whether the goods imported and seized by the custom, falls under the heading 2309 or 2936, the entire related provisions including the Tariff, General Rules for interpretation of schedule provided under the Customs Tariff Act, 1985, should be taken into account. 76.It is trite in law that while considering the statutory provisions, meaning should be given to each and every word, Sections, Clauses and statutes as a whole. Statutory provisions cannot be interpreted in isolation or piecemeal, vide, 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi. Accordingly, while considering the controversy in question not only General Rule for interpretation of schedule should be looked into but entire provisions with regard to HSN code should be read as correct relevant for the purpose of the present controversy. Indo-Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and goods were smuggled into India by misdeclaration, then burden was on the respondent under Section 123 of the Act, to lead evidence to negate the charges. 80.The respondent has failed to lead any evidence which may even prima facie establish that M/s. Anivet Industries is having manufacturing unit in Nepal to produce "Poultry Feed Supplement" which was imported by them. In view of the above, the respondent does not seem to be entitle for the benefit of Indo-Nepal Treaty to secure its interest. 81.Much emphasis has been given by the learned counsel representing respondent with regard to certificate given by the authorities of Nepal. Of course, the authorities of Nepal have given certificate with regard to goods imported by the respondents stating therein that the "Poultry Feed Supplement" in question, is the product of Nepal but the Indo-Nepal Treaty does not seem to contain any provision which may show that the certificate given by the authorities of Nepal, shall be final and not open to scrutiny by custom authorities. Merely because some certificate has been issued by the authorities of Nepal, it shall not deprive the authorities under the Act of exercising th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the goods imported from M/s. Anivet Industries of 2000 kg of AV 110 was seized by DRI ON 30.5.2002. He further states as under: "I state that in our factories M/s. Bader Schulz Labs &. M/s. Bio Vet Industs., we manufactor feed supplements & vitamin premixes to different companies & customers. M/s. Ranbaxy (sic......) Feeds, (sic...), etc. In our said two factories different feed supplement imported from China, Japan & Europe are used. However, the said factories generally (sic...) from Sonam Industries and Sheetal Pharma and from various local importers." 87.From the aforesaid statement it seems to correct that vitamin-E is imported by the respondent from various countries for manufacture of animal feed supplement. The aforesaid statement is supported by receipts of imports of vitamin-E of M/s. Anivet Industries whereby the industry has imported into Nepal Vitamin-E from China and Germany. Coupled with the lab report, overwhelming evidence of record establish that it is not the animal feed supplement or poultry feed supplement but it is vitamin-E imported under the garb of animal feed supplement which is supplied to industries for manufacture of animal feed suppleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rushottam Tiwari(Dead) by L.Rs. held as under : "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for hearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court." ................ ................ While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it." 92.The aforesaid proposition of law has been reiterated in a case, reported in AIR 2001 SC 2171 Madhukar and others versus Sangram and others. 93.In an earlier judgment, reported in AIR 1998 SC 2713 Punjab National Bank and others versus Kunj Behari Misra, Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... major portion of the gold was found and expected to recover gold it may be inferred that the accused was evading the prohibition. The circumstances should be taken up cumulatively. 97.In the case of Kewal Krishan Vs. State of Punjab reported in AIR 1967 SC 737 their Lordship's held that when goods are seized with reasonable belief that they are smuggled one then onus proving that they are not smuggled goods i.e. not of foreign origin on which duty was not paid shall be on the person on whose possession the goods are seized. The onus shall not be on the prosecution to show that the good are not of Indian origin. In case contention of respondent's counsel is accepted then it will amount to shifting of onus on the prosecution. 98. Their Lordship of Hon'ble Supreme Court in a case reported in 1996 (83) E.L.T. 258 (S.C.), Naresh J. Sukhawani Vs. Union of India had held as under- "4. It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner." 100. In the case, Surjeet Singh Chhabra and Naresh J. Sukhawani (supra) Hon'ble Supreme Court while interpreting Section 108 and 111 of Customs Act, has held that confessional statement made before the custom officers, retracted, shall be binding since custom officers are not police officers. Accordingly, the statement of Pradeep Pathak cannot be thrown out as baseless only because of retraction at later stage. 101. It shall be relevant to take note of the fact that at no stage, the respondent has either led evidence or tried to rebut the appellant's version that M/s. Anivet Industries, does not have got any manufacturing unit at Nepal and it imports vitamin-E from china, Germany and other countries. No effort was made by the respondent to establish that vitamin-E to the extent of 49% could have been used as animal feed supplement. Rather, it has been submitted that 1-2 gms., is mixed in one tone or more in animal feed. 102. It is vehemently argued by Sri Naveen Mullick learned counsel for the respondent relying on Tetragon Chemie's case (supra) that there is difference between the product and preparation and existence of vitamin-E to the extent of 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct" (Hodder v DPP; Matthews v DPP [1990] Crim. L. R. 261). "Preparation... of ... preserved food" (Food Act 1984 (c. 30). s.16). The slicing of cooked meats does not amount to "preparation" for the purposes of this section (Leeds City Council. V Dewhurst [1990] Crim. L. R. 725). Stat. Def. Food and Drugs Act 1955 (c.16), s. 135 (1)." 105. Reliance placed by respondent's counsel over the judgment of Tetragon Chemie (supra) with submission that goods in question covered, fall under heading 23.09, includes the forage and other preparation, seems to be misconceived. There appears to be no reason to differ with the Tetragon Chemie's case that preparation mentioned under heading 23.09 of HSN include sweetened forage and other preparations. Other preparations include preparations for supplementing farm-product feed and preparations for use in making the complete feeds. Vitamins or provitamins, aminoacids, anti-biotics, coccidiostats, trace elements, emulsifiers, flavourings and appitizers are the ingredients of these preparations. But when we come to question with regard to import of goods and custom duties with respect to finding recorded in Tetragon Chemie (supra), it does not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he argument of learned counsel for the respondents could have carried weight in case in the bill of entry, they would have declared the contents of vitamin-E to the extent of 50% or less. Because of substantial percentage of vitamin-E in goods in question, it shall be a product for its future use in animal feed supplement and shall fall under HSN Code29.36. 110. It has been brought to the notice of this Court that special leave petition filed against the judgment in Tetragon Chemie's case (supra), has been dismissed by the Hon'ble Supreme Court but mere dismissal of special leave petition shall not mean that the judgment and ratio of case of Tetragon Chemie, shall be deemed to be the judgment of Apex Court and binding under Article 141 of the Constitution of India. It is settled law that judgment of Hon'ble Supreme Court shall be the judgment which lays down law while adjudicating a dispute and should be considered in reference to context and only thereafter it will have the binding effect under Article 141 of the Constitution of India. 111. From the composition break up of AV 110 also it appears that vitamin-E was 990 grams, BHT 05 gms and stabilizers 05 gms per kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to be totally perverse. The higher court does not sit as regular court of appeal. The position may be different in case finding of fact is materially affected by violation of any Rule or law or absolute perversity. As observed, it is trite in law that appellate authority while dissenting with the subordinate authority, should meet out finding recorded by the original authority by binding reasons. 115. Classification made by Revenue keeping in view the overwhelming percentage of vitamin-E in the goods seized, seems to be reasonable classification on the basis of HSN code. Hence Tribunal seems to have exceeded jurisdiction while reversing the finding of fact of two forums below without expressing the difference of opinion on various issues adjudicated by the original and appellate authority. Other case relied upon by the learned counsel for the respondent while defending the Tribunal's order are discussed hereinafter. 116. Much emphasis has been given by the learned counsel for the respondent on the case reported in 1983 (13) E.L.T. 1566 (S.C.): Dunlop India Ltd. & Madras Rubber Factor Ltd. Vs. Union of India and others, which seems to extend no help. In that ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not seem to lay down correct proposition of law to the extent with regard to its application to the present controversy. As observed, this is not a case where notice was issued for reassessment but it is case where the goods were seized on the basis of information received and later on, found to be vitamin-E falling under HSN code 2936. The Tribunal failed to appreciate the statutory right and duty of custom authorities provided under Chapter XIII and X IV of Customs Act, 1962. 122. The case of Collector of Central Excise, Kanpur and Flock (India) Pvt. Ltd (supra), seem to be not applicable under the facts of the present case where Hon'ble Supreme Court held that in case adjudicating authority has passed an order appealble under the statute, party aggrieved did not choose to exercise statutory right of filing appeal, it is not open to question the correctness of order of the adjudicating authority subsequently by filing of claim for refund on the ground that adjudicating authority has committed error. 123. Much emphasis has been given by Sri Naveen Mullick learned counsel for the respondent on the case of Navin Chemicals (supra) which relates to determination of q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplement. Virtually, the overwhelming presence of vitamin-E in the goods seized shows that deliberately, knowingly and intentionally, it was imported as vitamin-E and sent to various industries for preparation of 'animal feed supplement' which has been virtually admitted by the witnesses. 128. It has been admitted by the respondent's counsel that vitamin-E supplied by the respondent M/s. Sonam International, is used for making broiler premix, layer premix, SK bed, SK Mix, ABDK, etc. In case the goods in question for preparation would have been directly imported for use as animal feed supplement, then things would have been different and it could have been treated as HSN Code 2309. The Tribunal seems to be impress by the word,' "includes", under Chapter 23 of CETA. With regard to scope of heading 2302, by using the word, "includes", does not mean that language or words, used in heading 2936 may be given go-bye. Virtually by using the word, "includes", undoubtedly, the legislature provided in addition to preparation mentioned in heading 2302 products of a kind, used in animal feeding and processing may be included. Inclusion does not mean that a product or goods because of ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). 131. That is why, Chapter 23 under heading 2309 includes product of a kind used as animal feeding not else where specified or included, obtained by processing vegetables or animal material to such extent that they have lost the essential characteristics of the original material, other then vegetable wastes, vegetables residues and by-product of such processing. Thus, note under Chapter 23 itself provides that the product under heading 2309 contains the preparation under heading 2309 which has lost their original identity or essential characteristics after mixed with other products while preparing animal feed supplement. The extent of 45-50% of vitamin speaks volume. 132. The case of Abhi Chemicals & Pharmaceuticals Pvt. Ltd. (supra), does not seem to be applicable to the facts and circumstances of the present case. 133. The aforesaid proposition seems to be supported by Apex Court judgment relied upon by the respondent reported in 2001 (132) E.L.T. 525 (S.C.): Collector of Central Excise, Bangalore Vs. Tetragon Chemie P. Ltd. (supra), whereby, the Tribunal's judgment was affirmed by Hon'ble Supreme Court. Their lordships while dismissing the appeal of C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
