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TMI Blog2018 (7) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... iteria for classifying the goods under the Customs Tariff. There is no dispute on the fact that the goods imported are Crude Palmolein (Edible Grade). It is also not disputed in the impugned order that the appellant is a manufacturer of refined oil and the imported crude palmolein is further refined after clearance and sold for human consumption. When the imported goods conform to the specific description under Ch 1511 10 00 as crude Oil and there is no specific chapter note or HSN Explanation specifying criteria of acid value or carotenoid content for classifying the crude oil, therefore the goods imported are appropriately classifiable under Chapter 1511 10 00 of CTH and any specific description given under Sl. No. 34 of Notification 21/2002 for the purpose of exemption cannot be taken as criteria for classification of the product under Chapter Heading 1511 90 90 as Others . Tribunal s Co-ordinate Bench in the case of Gujarat Ambuja Exports v. CC, Kandla [2009 (6) TMI 662 - CESTAT, AHMEDABAD] on an identical issue of classification of import of crude palmolein, has dealt the issue in depth and discussed the Board s circular and referred to HSN Explanatory Notes and held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 against the claimed classification under 1511 1000 and also demanding ₹ 2,73,93,096/- on the plea that as per test reports, the goods have not fulfilled the parameters of the exemption notification no.120/2003-Cus dated 01.08.2003. The Ld. Counsel vehemently argued that it is scientifically established that with lapse of time and temperature variations, there is deterioration of beta carotene and its level does not remain the same. The appellant requested the authority to supply the test report and some information about drawing of the samples. It is his submission that the department did not provide the document/information in respect of (i) the date and time of drawal of sample, (ii) method of testing, (iii) whether remnant samples are available for re-test and (iv)the date and time of drawal of sample by the DRI Officer, on the plea that those were not relevant to the proceedings. On the basis of the report which were provided by the department , it is evident that testing of the representative sample was done after a long delay. It is also the case of the appellant that acid value below 2% and/or beta carotene content less than 500 mg/kg of crude palm oil does not au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cochin Custom Lab. We find that the DRI has taken only one sample and sent the same to Mysore. In our view, this sample cannot be representative of entire consignment as the consignment was in nine different, tanks. During hearing, the learned advocate took us through the various technical findings of experts according to whom, with passage of time, the beta carotene in crude palm oil decreases. We also perused the test results of Ganesh Scientific Research Foundation and Shri Ram Institute for Industrial Research. For example, in the original palm oil, the carotene content was 451.8 after five hours, it became 401.3 after 10 hours. The content was reduced to 372.3 after 15 hours, it was 278.6 after 7 days, it was 203.9 after 14 days. The above test has been conducted on the request of the Edible Oil Commissioners and Chief Director Ministry of Food and Consumer Affairs. Similar reports have been issued by Shri Ram Institute for Industrial Research. From these reports, we find that beta carotene level does not remain the same. With lapse of time, and temperature variations, there is deterioration of beta carotene. In deciding this case, this scientific findings given by reputed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in the case of Commissioner of Customs Cuticorin v. KTP Oil Mills, 2005 (182) E.L.T. 376 (Tri-Chennai). wherein the Tribunal has held that Chemical analysis of sample three months after it is drawn could not serve any purpose. In fact, the above view is only that of Chief Chemists CRCL. In that case also, the item imported was crude palm kernal oil. The above case refers to a clarification by CRCL, New Delhi to the effect that any analysis after a period of three months from the date of drawal of sample would not serve any purpose. There is also nothing on record to show that the method adopted by Cochin Custom lab was defective. The fact is that at the time of import, the goods satisfied the conditions of the notification. Even when we perused the results of CRCL, New Delhi, we find that in respect of 2 samples, the carotene content is as per the requirements the values are 524.3 and 525.8. In respect of 4 samples, the difference is only marginal values are 494.6, 485.5, 483.1, 475.7 only in respect of remaining three samples, the difference is appreciable. The values are 391.9, 390.5 and 424.1. We are satisfied that over a period of time, the beta carotene content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil 1511 90 20 Refined, Bleached, Deodorized pamolein 1411 90 20 Other 5. We also find that the Commissioner has correctly identified the issue by discussing the tariff headings as under: There are two sub-divisions of Entry 1511. First is 1511 10 00 which covers Crude Palm Oil and second 1511 90 which covers Palm Oil other than Crude Oil. The second category has been further divided into three sub-categories. First, if the Oil is refined, bleached and deodorized, then it is to be classified under Heading 1511 90 10 or 1511 90 20 depending on whether the oil is Palm or Palmolein. If a non-crude oil is not covered under 1511 90 10 or 1511 90 20, then the same is classifiable under Heading 1511 90 90. Therefore, the basic issue is whether the imported goods are Crude Oil. 6. Admittedly, Crude Palm Oil has not been defined in the tariff. However, as pointed out by the learned advocate, the HSN provides the definition of crude oil, which is reproduced below : Fixed vegetable oils, fluid or solid, obtained by pressure shall be considered as Crude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument advanced by the learned advocate that the imported product has to be classified under CTH 1511 10 00 only. 9. The only ground on the basis of which the Revenue has classified the Crude Palm Oil imported by them in 2003 under CTH 1511 90 90, as the circular issued by the Board on 24-9- 2003. For better appreciation, the circular is reproduced below : Circular No. 85/2003 24th September 2003 F. No. 528/21/2003-CUS(TU) Government of India Ministry of Finance Department of Revenue Central Board of Excise Customs Sub: Import of Palm Oil/Palmolein in refined/crude form - reg. I am directed to say that doubts have been expressed regarding classification of palm oil/palmolein imported in refined or crude forms. 2. This matter was also discussed in the Conference of Chief Commissioners held at Mumbai on 21st and 22nd August, 2003, minutes of which have been issued vide F. No. 401/86/2003- CUS-II, dated 4-9-2003. 3. According to the Explanatory Notes to the HSN, under Heading 15.07, fixed vegetable oils, fluids or solid obtained by pressure are to be considered as Crude if they have undergone no processing other than d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of test reports of samples drawn by the Port Health Officer (PHO). If the reports mention the item as Crude palm oil/palmolein or as palm oil/palmolein which needs further processing, the report should be accepted and assessment finalized accordingly. If the test reports indicate the item as RBD palm oil/palmolein, the assessment should be finalized under sub-heading 1511 90 10. 11. However, if the test reports do not contain indications as mentioned above, the matter will have to be examined as to whether provisions of Section 28A of the Customs Act, 1962 can be invoked in this case or not based on the general practice of assessment in the past. For this, a report is being sought separately from the Commissioners. 12. In respect of warehoused goods which are cleared for home consumption after 1-8-2003 (even though imports may have taken place prior to this date) the assessment will be done as per Section 15(1)(b) of the Customs Act, 1962, i.e. at the rate applicable on the date on which the Bill of Entry is filled for home consumption of the warehoused goods. 13. Action may be taken accordingly in respect of past pending and future clearances of palm oil/pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision is squarely applicable to the facts of the present case as the department chose to classify the imported goods under Chapter 1511 90 90 based on the acid value and carotenoid content as per description given under Sl. No. 34 of the Notfn. 21/2002 and as per the Board s clarification dated 24-9-2003. In consistent with the above Tribunal s decision, we are of the considered view that classification of imported goods should strictly be made as per the chapter note, section note and the description of specific sub-headings read with HSN Explanatory Notes. Main Chapter Heading 1511 covers palm oil and fractions whether or not refined but not chemically modified. Chapter 1511 10 00 covers crude oil and Chapter 1511 90 covers Others . On perusal of records, and test reports, we find there is no dispute on the fact that the goods imported are Crude Palmolein (Edible Grade). It is also not disputed in the impugned order that the appellant is a manufacturer of refined oil and the imported crude palmolein is further refined after clearance and sold for human consumption. When the imported goods conform to the specific description under Ch 1511 10 00 as crude Oil and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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