9911796707
TMI Blog2015 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... is not possible to infer whether the product is modified starch warranting classification under 35.05 - Further, following the CESTAT judgment in the case of Ridhi Sidhi Gluco Boile (2011 (4) TMI 970 - CESTAT, BANGALORE), CESTAT in case of CCE Ahmadabad Vs. Gujrat Ambuja Exports [2013 (11) TMI 779 - CESTAT AHMEDABAD] and in the case of CCE Ahmadabad Vs. Maize Products [2013 (11) TMI 783 - CESTAT AHMEDABAD] upheld the classification of such goods under ch. 11 of Central Excise Tariff. - It is evident from the foregoing discussion that there is no basis whatsoever to conclude that the impugned product was ‘modified starch classifiable’ under chapter 35 of Central Excise Tariff. Consequently, we do not find the impugned order sustainable and set aside the same. - Decided in favour of assesse. - E/2342/2006-EX[DB] - FINAL ORDER NO. 54471/2014 - Dated:- 17-10-2014 - Mr. G. Raghuram and Mr. R.K. Singh, JJ. For the Appellant : Shri V. Lakshmikumaran, Advocate For the Respondent : Shri Yashpal Sharma, AR JUDGEMENT PER: R.K. Singh Miscellaneous application No. 50431/2014-EX[DB] has been filed by Revenue for early listing of the appeal. Another Misc. application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve way for a maximum period of two hours. The maize starch (K) was finally obtained by drying this starch slurry. 5. The adjudicating authority in para 120 of the impugned order admitted that the issue before him is whether such addition of potassium permanganate to plain starch will change its classification from chapter 11 to chapter 35. The adjudicating authority duly took note of the fact that the quantity of potassium permanganate used is small and that it is used to enhance the brightness of the product. The adjudicating authority however opines that addition of a chemical resulting in any change irrespective of how it acts on the chemical structure of starch would shift this product from the scope of plain or native starch to a starch commercially processed for specific use by a customer. He referred to the chapter notes of chapters 11 and 35 of Central Excise Tariff vis-`-vis the HSN note to chapters 35.05 and observed that: (i) To interpret the HSN notes to mean that the starch can be considered as modified only if there is chemical change in the structure of the starch is in fact to read more than what the note actually means. (ii) Changes can be structural, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants factory. (ii) Certain other test reports of CRCL dated 03.01.2002 and other reports pertaining to the year 2004 were introduced during the adjudication proceedings. (iii) The reports from CRCL produced did not relate to samples of products drawn at the relevant time but are subsequent to the companys letter stating that they had ceased to use the chemicals in question. The adjudicating authority conceded that none of these reports can be relied upon as the dispute pertains to the period prior to December 2002. Further as stated earlier, the adjudicating authority conceded that the potassium permanganate was used in small quantities and was used only for increasing the whiteness of starch. 10. We find that in the remand order No. 345-346/05-NB(A) dated 07.03.2005 (in the wake of which the impugned order was issued) CESTAT had clearly observed: 2. The appellant s case is that it has been producing both the varieties of starch and discharging duty correctly on both. During the hearing of the case, the test reports of the chemical examiner have come on record. Apparently, these relate to different varieties. One set clearly records that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in general modified starches of this heading may be distinguished from unmodified starches of chapter 11 on the basis of changes in their properties for example solution and gel clarity, tendency to gel or to crystallize, water binding capacity, freeze-thaw stability, gelatimisation temperature or peak viscosity. It is thus evident that mere change in brightness would not result in transporting starch from chapter 11 to chapter 35 unless the change is such as is described in the above quoted explanatory note (to chapter 35.05). In the adjudication order reference is made to the fact that potassium permanganate is an oxidation agent and therefore may have resulted in the oxidation of starch to make it modified starch. The appellants have clearly explained that the small quantity of potassium permanganate which they have used cannot result in oxidation of starch; it can only act as a purifying agent. They also added that the use of meta bi sulphite was to stop any possible action of oxidation of starch. Thus they have been able to convincingly drive home the point that the process which they undertook was only for purification of starch which increased its brightness. While it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emical properties distinguish modified starches of chapter heading 35.05 from native starch of chapter 11. We find that unless the parameters are ascertained on test it cannot be conclusively found as to whether the impugned goods are correctly classifiable under chapter 11 or chapter 35.05 of the tariff. The civil appeal against this CESTAT was dismissed by Supreme Court 2014 (301) ELT A128 (SC). As has been admitted there are no test reports of the impugned product available in this case and therefore following the ratio laid down by CESTAT in the case of Riddhi Siddhi Gluco Boils Ltd. (supra), there is no basis to conclude that the impugned product was classifiable under heading 35.05. Further, following the CESTAT judgment in the case of Ridhi Sidhi Gluco Boile (supra), CESTAT in case of CCE Ahmadabad Vs. Gujrat Ambuja Exports 2013 (297) ELT (57) and in the case of CCE Ahmadabad Vs. Maize Products 2013 (298) ELT 439 (Tri.-Ahm) upheld the classification of such goods under ch. 11 of Central Excise Tariff. 14. It is evident from the foregoing discussion that there is no basis whatsoever to conclude that the impugned product was modified starch classifiable under chapter 35 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
