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TMI Blog2014 (5) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... CUSTM - AXP - APP - 300 & 301/13-14 dated 11-11-2013 M/s. Reliable Trading Co., GIDC, Plot no. 813, Veraval, Gujarat - 362265. 5. 371/17/DBK/14-RA MUM - CUSTM - AXP - APP - 286 & 287/ 13- 14 dated 11-11-2013 M/s. Khizar Exports, Sewri Cross Road, Nr. Sewri Rly. Station, Mumbai - 400015. 6. 371/18/DBK/14-RA MUM - CUSTM - AXP - APP - 302 & 303 / 13 - 14 dated 11-11-2013 M/s. National Sea Food Corporation, Sewri Cross Road, Sewri (W), Mumbai - 400013. 7. 371/19/DBK/14-RA MUM - CUSTM - AXP - APP -292 & 293/ 13 - 14 dated 11-11-2013 M/s. SKF Exports, Sewri Cross Road, Sewri (W), Mumbai - 400 015 8. 371/20/DBK/14-RA MUM - CUSTM - AXP - APP - 288 & 289 / 13 - 14 dated 11-11-.2013 M/s. Global Impex Trading, 36/3 Haji Jumma Compound, Sewri Cross Road, Sewri (W), Mumbai - 400015. 9. 371/21/DBK/14-RA MUM - CUSTM - AXP - APP - 298 & 299/ 13 - 14 dated 11-11-2013 M/s. Rehmania Sea Food, Sea Breeze Apartment, Gr, Floor, Koliwada, Vasai West, Dist : Thana 10. 371/22/DBK/14-RA MUM - CUSTM - AXP - APP - 290 & 291/13-14 dated 11-11-2013 M/s. Star Marine Exports, Dnyaneshwar Nagar CHSL, C-2, Flat No. 40, 4th Floor, R.a. Kidwai Road, Wadala, Mumbai - 400031. 11. 371/23/DBK/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; In fresh chilled form 030402 In frozen form 0305 : Fish, dried, salted or in brine; smoked fish, whether or not cooked before or during the smoking process; flours, meals and pellets, of fish fit for human consumption. 2.4 For the purpose of claim under DEPB the classification of the export product was not material. However, for claims under Drawback the classification and description are important factors and as such items need to be products of Chapter 03 only. As mentioned above Fish Maws has been classified under various Tariff Items of Chapter 03 for claim of drawback. 2.5 As per the Finance Bill 2011-12 certain changes have been made in the Customs Tariff. The first Schedule to the Customs Tariff Act was amended as on 1st January, 2012. The following amendments were made applicable in Chapter Heading 0305. A new classification has been included for fish fins, heads, tails, maws etc. - Smoked fish, including fillets changed to :- Smoked fish, Including fillets, other than edible fish offal; - Dried Fish, whether or not salted but not smoked changed to :- Dried fish other than edible fish offal, whether or not salted but not smoked - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em to deposit "excess" drawback on the ground of wrongly classifying the products under SS No. 0305 attracting drawback @ 2% at the material time instead of the correct Drawback SS No. 0511 attracting 1% drawback. The said entry referred in the said Notice under Chapter 5 which reads "Products of Animal Origin Not elsewhere specified or included and specifically SS No. 0511 which reads : "0511 Animal products not elsewhere specified Or included; dead animals of chapter 1 or 3, Unfit for human consumption" 2.9 After following the due process of law, the Deputy Commissioner vide impugned orders-in-original confirmed the recovery of excess drawback along with interest. 3. Being aggrieved by the impugned orders-in-original, applicants filed appeals before Commissioner (Appeals) who rejected the same. 4. Being aggrieved by the impugned orders-in-appeal the applicants have filed these revision applications under Section 129 DD of the Customs Act, 1962 before Central Government on the following grounds : 4.1 The Applicants submit that the item exported by them is "Fish Maws" which is a bladder/part of a fish and is an edible delicacy in Chinese food Preparat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-Cus. (N.T.), dated 22-9-2011). Therefore, without prejudice to the aforesaid arguments, the amendment to the first schedule of the Customs Tariff Act 1975 at the Six digit level only by insertion of entry 03057200 in the Customs Tariff vide fifth schedule to the Finance Act 2011 has no application to the duty drawback schedule which remained unchanged. The impugned order is therefore without factual or legal basis and is therefore liable to be set aside on this ground also. 4.5 The Commissioner has attempted to find fault in the specific clarification viz. : Clarification letter issued by the Asst. Commissioner of Customs, ACC, Ahmedabad Ref VIII/48-573/ACC 2011, dated 29-3-2011 wherein it was clarified that fish maws were correctly classifiable under 0305. In fact contrary to what the Commissioner observes, the Assistant Commissioner has referred to and relied upon the relevant HSN explanatory notes while giving his opinion. Commissioner failed to appreciate that the clarification of the Assistant Commissioner was neither rescinded nor modified and was therefore binding upon the department. Argument of the Commissioner therefore is unsustainable and the impugned order lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products of Animal organ not elsewhere specified or included. Since the fish/fish maws specifically covered in chapter-3, its classification is to be considered in chapter-3 itself. Department has classified the fish maws in Sr. No. 0511 which reads as - Animal products not elsewhere specified or included; dead animals of chapter-1 or 3, unfit for human consumption. The said heading covers animal products not specified elsewhere and are unfit for human consumption. Fish maws is a fish dried product and fit for human consumption and therefore it cannot be classified in Sr. No. 0511. 8.1 Department has relied upon HSN explanatory notes for Custom tariff heading 0511. In this regard, Government observes that vide Finance Act 2011 w.e.f. 1-1-2012, the CTH 0305 has been amended and Tariff item 0305 71 00, 0305 72 00 and 0305 79 00 have been inserted. Item No. 0305 72 00 is for fish maws. Despite the above said HSN notes, the item is classified in CTH 0305 72 00 w.e.f. 1-1-2012. The description, use and nature of said product remained same and it will be anomalous to classify it under drawback Sr. No. 0511 upto 31-12-2011 and under Sr. No. 0305 after 1-1-2012. The entries have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 1-1-2012). This issues with the approval of DGFT. Yours faithfully [Nirmal Kumar] Deputy Director General of Foreign Trade Tele. No. 23061562 Extn :255" As per above said classification, the fish maws for the purpose of VKGUY scheme is to be classified under ITC HS0305 and eligible for VKGUY benefit irrespective of period of export whether before 1-1-2012 or after 1-1-2012. Similarly, AC, Customs, Air Cargo Complex Ahmedabad has also issued clarified vide letter F. No. VIII/48-573/ACC/2011/2596 dated 29-3-2011 that fish maws is correctly classified under Sr. No. 0305. The said clarification also lends support to the view that fish maws is classifiable under drawback schedule Sr. No. 0305 for the period before or after 1-1-2012. 9. In view of above discussion, Government observes that fish maws is rightly classifiable under drawback schedule heading 0305 during the period prior to 1-1-2012 and after 1-1-2012. The drawback claims initially sanctioned to the applicants were in order and order for recovery of drawback claim @ 1% is not legally sustainable. Therefore Government sets aside the impugned orders and uphold the orders sanctioning drawback claim @ 2%. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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