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TMI Blog2016 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... t of chapter 28 - In the context of the present import, that particular line of reasoning may not provide the answer. The goods listed in notes 2(A), 3(A), 4(A) or 5 to which note 1(b) refer are intended to restrict the applicability under one or other of headings 31.02, 31.03, 31.04 as applicable. Note 6 of chapter in relation to the residuary category restricts classification under ‘other fertiliser’ in 31.05 to goods to be used as ‘fertilisers’ and containing one of the fertilizing elements. In view of the above arrangement of exclusions and inclusions in chapter 31, it would appear that all of the headings preceding 31.05 are to be taken as ‘fertiliser’ to the extent that these are also used as fertilizer and not excluded by note 1(b). There is no averment in the note or impugned order that that the imported goods are not fertilizer. For the above reasons, we find that the classification of the imported goods should fall under chapter 31 and not chapter 28. The inclusions of the imported items in the Fertiliser (Control) Order 1985, as amended in 1995, cannot but reinforce the opinion that these are indeed fertilisers as decided by the competent department of the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also contended that the adjudicating authority has overlooked the fundamental fact that there is no allegation to the effect that the goods imported are not used as fertilizers and that once it is a fertiliser, classification under chapter 28 is ruled out. It is also contended that the heading 31.05 is also specific and hence would prevail over the general heading in chapter 28. Reliance was placed on the ratio of the decision of the Hon ble Supreme Court in Commissioner of Central Excise v. Tetragaon Chemie Pvt Ltd. [2001 (132) ELT 28] and that the test report relied upon is not conclusive whereas the test report of the earlier consignment of 2000 goods had reported the result as PK fertilizer . The failure of the adjudicating authority to take note of the registration certificate issued by the Director of Agriculture of various states, which is mandatory for sale of fertilizer, has also been pointed out to us. It was also submitted that mono potassium phosphate has been described as a fertilizer in the Fertiliser (Control) Order dated 12th October 1995. The sales invoices also indicate that the imported goods are sold as fertilizers. It is also argued that there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sium Nitrate Grade 13-0-45 Prilled imported by the appellant, is properly classifiable under Chapter 31. 6.4. In arriving at the above conclusion, we have also taken note of various Notifications issued by the Government of India laying down the effective rate of duty in respect of Potassium Nitrate in a form indicative of its use for manurial purpose. In the said Notifications, the classification of the Potassium Nitrate to be used for manurial purpose, has been shown as under Chapter 31. Inasmuch as the goods imported by the appellant are specified as fertilizer in the Fertilizer (Control) Order, the same would properly fall under Chapter 31, as is also recognised by the Ministry of Finance, Government of India in the various Notifications referred to by the learned Advocate for the appellant. 4. Relying on the decision of the Hon ble Supreme Court in Commissioner of Central Excise, Bangalore v. Karnataka Agro Chemicals [2008 (227) ELT 12 (SC)] the inappropriateness of invoking the extended period as expressed in the judgment was highlighted 27. On the question of invocation of extended period of limitation, we are in agreement with the view expressed by the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicates that the heading of that chapter would only apply to items listed in the said note among which are separate chemically defined compound. With reference to HSN Explanatory Notes under Heading 31.05 where it is stated: the heading does not include other chemically defined compounds not specified . even if they could be used as fertilizers 7. We note that the adjudicating authority has relied primarily upon the tariff entries, the circular of the Central Board of Excise and Customs and a decision of this Tribunal in 2001 to exclude from the list of fertilisers such goods by describing them as separate chemically defined compounds. The adjudicating Commissioner has not discounted the contentions of the importers that the goods are indeed fertilizers but has decided against the importers on the ground that these are individually chemically compounds which find a specific mention in the Tariff. There can be no doubt that the potassium phosphate finds specific mention in chapter 28 and the HSN describes it in the following manner under chapter 28: The best known is potassium dihydrogenorthophosphate (monopotassium phosphate) obtained by treating phosphate chalk ..... X X X X Extracts X X X X X X X X Extracts X X X X
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