9911796707
TMI Blog2019 (8) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... essed) for fish feed; etc.. - The exemption provided at Sl.No. 1 of Notification No. 12/2017-C.T.(Rate) exempts payment of GST only in respect of services provided by way of Charitable activities relating to Preservation of environment including watershed, forests and wildlife (entry related to the proceedings in hand) and the construction of the exemption is not to provide exemption to all the activities undertaken by an entity registered under Section 12A of the Income tax Act, which is involved in activities relating to Preservation of environment . The appellant who are the R D arm of MPEDA, whose mission is to undertake research, give consultancy and technical services to the farmers, entrepreneurs, and scale up the technologies developed, etc. after assuring the commercial viability of aqua products undertakes various activities to attain the aim of the society. By the construction of the exemption, it is clear and unambiguous that the exemption, is applicable only to Services relating to Preservation of environment when provided by an entity registered under Section 12AA of Income Tax Act and not to the entire activities of such entity - the appellant as an entity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service as the same as per definition in the notification is limited to application of research and knowledge through farmer education or training, whereas the testing done by the appellant does not involve farmer education or training. The testing done by them is a service to the farmers for a consideration. Whether the training activities undertaken by RGCA to students, academia who are not directly involved in rearing of fish, aquaculture etc. are covered under SAC 9992 and liable to GST as held by the Original Authority and these are also not Agricultural extension Services and therefore exempted vide Entry No. 54 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 as amended? - HELD THAT:- In the case at hand, it is not disputed that the training extended by the appellant to student, academia, etc for a charge, is the activity of training / imparting the skill in aquaculture. The entire spectra of Education (Primary, Secondary, Higher), Specialized education, Other education and training services are covered under SAC 9992. Even if the activity of the appellant is considered as not covered under the specific heading 999293-Commercial Training and Coaching the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct appeal is filed under Section 100(1) of the Tamilnadu Goods Services Tax Act 2017/ Central Goods Services Tax Act 2017 (hereinafter referred to the Act) by M/s. Rajiv Gandhi Centre for Aquaculture, 3/ 197, Poompuhar Road, Karaimedu Village, Sattanathapuram-609 109, Sirkazhi Taluk, Nagapattinarn District, Tamil Nadu (hereinafter referred to as the appellant ). The appellant is a Society registered under the Tamil Nadu Societies Registration Act and is functioning under the Marine Products Export Development Authority, Ministry of Commerce Industry, Government of India. The appeal is filed against the Order No.9/AAR/2019 dated 23.01.2019 = 2019 (3) TMI 1074 - AUTHORITY FOR ADVANCE RULING, TAMILNADU passed by the Tamilnadu State Authority for Advance ruling on the application for advance ruling filed by the appellant. 2. The appellant has stated that presently their operations are carried out in Andaman Nicobar Islands, Kerala and Andhra Pradesh in addition to Tamil Nadu and their operations could be extended to other states of India also. The main activities carried over by them are: (a) Research and Development for general public (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e : a. Fish seeds, prawn/ shrimp seeds supplied by RGCA, classifiable under 0301, are exempt from CGST under Sl. No. 18 of Notification No.2/2017-C.T. (Rate) dated 28.06.2017 as amended and from SGST under Sl. No. 18 of Notification vide G.O. (Ms) No. 63 dated 29.06.2017 as amended. b. Live fish supplied by RGCA, classifiable under 0301, are exempt from CGST under Sl. No. 19 of Notification No.2/2017-C.T. (Rate) dated 28.06.2017 as amended and from SGST under Sl. No. 19 of Notification vide G.O. (Ms) No. 63 dated 29.06.2017 as amended. c. Artemia cysts supplied by RGCA, classifiable under 0511, are taxable at 2.5% CGST under Sl. No.21 of Notification No. 1/2017-C.T. (Rate) dated 2806.2017 as amended and at 2.5% SGST under Sl. No.21 of Notification No. II(2)/CTR/532(d-4)/2017 vide G.O. (Ms) No. 62 dated 29.06.2017 as amended. d. Research and development activities of RGCA are towards breeding, developing new species, genetic testing of Seed and adults of diversified aquaculture species, Gene sequencing for confirmation of species, under SAC 9981, are taxable at 9% CGST under Sl. no 18 of Notification No 11/2017 dt 28.06.2017 as amended and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Section 100(2) of the said Act explaining the facts and circumstances which caused the delay in filing the appeal. They have stated that their clerical staff who received the impugned order did not bring the same immediately to the notice of the management without realising its importance and implication and incorrectly assuming that the appeal period is 60 days as in the case of Service Tax provisions and brought the fact of receipt of the said order to the notice of the appropriate higher officer only in the third week of April 2019 and as they being controlled by the government, they had to process the file to obtain necessary approval. They have further stated that they have a very fair chance to succeed in the appeal preferred by them. They have relied on the decision of Hon ble Supreme Court of India in the case of Esha Bhattachajee Vs Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649] =2015 (1) TMI 1053 - SUPREME COURT wherein it is stated that such delay is required to be condoned in the interest of justice. They have prayed that this learned Appellate Advance Ruling Authority may be pleased to take this appeal on record condonin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am of the opinion that if an embryo is within an egg and it is subsequently incubated in controlled temperature and under hydration, the larvae which are subsequently born do not assume the character of any different product but remain in nature and characteristics the same product or organism which is within the egg. Therefore, if the eggs did contain an embryo they could he classified as feeding materials for prawns and ought to have been so classified. These embryos may not be proper prawn feed at the time of importation but could become so, after incubation. Refusing to classify the product as prawn feed on this basis is not reasonable. In deducing the above principle, I have taken a lot of guidance from the case of Commissioner of Income-tax. v. Venkateshwara Hatcheries (P.) Ltd. reported in (1999) 237 ITR 174 (SC.) = 1999 (3) TMI 12 - SUPREME COURT (Supra) . Had the learned TNARA noted the above facts and followed the above decision of the Hon ble Calcutta High Court, they ought to have seen that the impugned Artemia cysts are exempt from CGST vide sl.no. 102 of Notification No.2/2017- CT (Rate) and from TNGST under the corresponding Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine species like fish, prawn, shrimp and crab etc. d. The learned TNARA ought to have noted that the appellant training the students and academia by imparting theoretical training in best farming methods of diversified aquaculture species is for equipping them in dissemination of the training knowledge to the field level for use by the farmers, fishermen etc. in application of the scientific research and knowledge in aqua farming and hence the said training is eligible for the exemption provided vide sl.no. No. 54 of Notification No. 12/2017 -CT (Rate) read with clause (f) thereto. e. The learned TNARA ought to have noted and followed the order of the Commissioner (Appeals), Guntur vide Order-in-Appeal No.GUN-EXCUS-0000165-16-17 dt.30.01.2017, the appeal against which filed by the department was rejected by the Hon ble CESTAT vide Final Order No. A/31014-31035/2018 dt.20.08.2018, holding that the appellant s activity of research and development of aquatic farms and dissemination developed techniques to the field aptly falls under the scope of definition of agricultural extension and thereby falls under negative list vide 66D(d)(vi) of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of personal hearing. They undertook to furnish written submissions on the Research Development activities and on the Commercial/ Non-Commercial nature of training undertaken by them. In the written submission inter-alia, they stated as follows: a. At the outset they pray that this Hon ble Appellate Authority may be pleased to condone the delay of 13 days in filing the appeal in view of the true and factual reasons stated in the Petition seeking the Condonation of the said delay by following the judgment of the Hon ble Supreme Court of India in the case of Esha Bhattacharjee Vs Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649] = 2015 (1) TMI 1053 - SUPREME COURT . b. They are a society registered under the Society Registration Act, duly registered and recognized as a charitable institution with no profit no loss basis. The appellant is an institution funded by the Marine Products Export Development Authority [MPEDA for short] under the Ministry of Commerce and is governed by an executive committee comprising of members from various ministries and Departments of both Central and State Governments including from MPEDA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r bias towards revenue as detailed below: o They are eligible for the exemption provided under sl.no. 1 of Notification No. 12/2017-CT (Rate) since they fulfill the required condition namely that they are registered as a body with no-profit no loss basis under Section 12AA of the Income Tax Act. The lower authority had rejected their claim only because their mission statement did not specifically declare the same is not proper or correct. o Artemia cysts which they process and prepare is a feed for the aquatic cultivated by them and is generally not sold by them except for a few occasional sales to few farmers involving amounts of less than ₹ 20 lakhs per annum. They undertake a series of process to prepare the feed and store in nitrogen filled boxes. These feeds have also to be used immediately on opening of the box and fed immediately for consumption by the shrimps cultivated by them, Thus the Artemia cysts processed by them is nothing but a animal feed classifiable only under Chapter 23 of CTA. The said classification denied by the advance ruling authority on the ground that it has not lost its essential character and that it is also not fit for huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept horse, for food since the above activities are undisputedly for rearing of live marine species like fish, prawn, shrimp and crab etc. for food. The rejection of the benefit of the notification on part of their above activity on the ground that the same were not provided directly to certain service recipients is not reasonable or justified. o (a) testing services provided by the appellant in testing for pathogens of soil, water, feed etc. and chemical analysis of water and soil (b) Testing services provided by them in testing seed (babies) and adults of diversified aquaculture species viz. fish, prawn, crab etc. and gene sequencing of spices and (c) Training the students and academia are covered by the Order-in-Appeal No.GUN-EXCUS-00-0155-16-17 dt.30.01.2017 passed by the Commissioner (Appeals), Guntur since the appeal against which filed by the department was rejected by the Hon ble CESTAT vide Final Order No. A/31014-31035/201.8 dt.20.08.2018 . Imparting of the training to trainers was in the interest of spreading the knowledge in the larger spectrum and more so the fact that they do not impart the training on a commercial basis that is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Commissioner versus Atherton Engg P. Ltd., reported in 2001 (129) ELT 502 (Tri. -Mum) = 2001 (1) TMI 332 - CEGAT, MUMBAI holding that live Artemia cyst are classifiable under heading 05.11. However, subsequently on a reading of the said judgments it is noticed that the decision of the Mumbai Bench of the Tribunal related to classification of packed Brine Shrimp Eggs requiring processing for conversion into larvae to become edible by prawns whereas the product in dispute is one which stood already converted and made ready for consumption by prawns as feed thus making it totally distinguishable to the facts of the case of the appellant. On the other hand, the observations of the Mumbai Bench of the Tribunal confirming that after processing and conversion into larvae the eggs would become edible for prawns as feed by itself support the case of the appellant. The judgment of the Hon ble Calcutta High Court reported in 2010 (256) ELT 358 (Cal) relied in support by the appellant is a later judgment which in fact considered the decision of the Mumbai Bench decision before making their observations as pointed out to direct the authorities to follow their obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of notification no. 11/2017 dated 28.06.2017 on the only ground that it does not fall within the ambit of the term support service not directly involving the fish farm, hatcheries or agriculture whereas the said authority ought to have considered the same as services relating to cultivation of plants and rearing of all life forms, considering that there is no requirement of direct or indirect use in the said provisions granting the exemption on services relating to rearing of all life forms . In any case and without prejudice the advance ruling authority ought not to have omitted to consider the benefit of the exemption on the above services as falling within the ambit of the agricultural extension services considering that the testing services ultimately result in imparting knowledge to the farmers rearing or cultivating the shrimp or prawns d. TRAINING SERVICES: considering SAC 999293 only covers commercial training and coaching services, which abundantly show that unless the activities is commercial in nature the same would not part-take the character of a taxable service to be made liable for the payment of the GST. The term commercial therefore assume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s defined under Sec. 2 (37) of the Wild Life Act, 1972 to mean includes the animal, aquatic or land vegetation which forms part of any habitat it is the respectful submission of the appellant that their entire activity should be held to be exempted in terms of serial no. 1 of notification 12/2017 Central Taxes dated 28.06.2019. The appellant submit that even though they had made such a claim the advance ruling authority neither disputed the said claim nor dealt with the said question in rendering their advance ruling. 7.2 The appellant has furnished note on the Activities of RGCA-Artemia Project and Research and Development activities as under: Activities of RGCA -Artemia Project: Artemia is a very good live food for Aquatic cultivable organisms. Adult artemia also called Artemia biomass is food for adult/ brooder fish and shrimps. Adult artemia are harvested from ponds when required. They are frozen and stored in -22 degree centigrade. This can also be dried as artemia flakes and stored in polythene covers. Adult artemia size is 1 - 1.5 cm. Artemia lays cysts/ eggs after 13-15 days of maturation. This Artemia cyst can be preserved and kept for any no. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices, Further RGCA succeeded in research of one particular aspect for which patent had been applied and it is in progress. The Outcome of the said research is being taught to farmers and other needy aquaculture industry in India. Hence, no research and development services are supplied. DISCUSSION: 8. We have carefully considered the various submissions made by the Appellant and the applicable statutory provisions. We find that the appellant is a society registered under the Tamil Nadu Societies Registration Act and functioning under the Marine Products Export Development Authority, Ministry of Commerce Industry, Government of India. They are registered under Section 12AA of the Income Tax Act. Their operations are carried out in Andaman Nicobar Islands, Kerala and Andhra Pradesh in addition to Tamil Nadu and their operations could be extended to other states of India also. The main activities carried over by them are: (a) Research and Development for general public (b) Providing Consultancy Service with respect to Marine Service (c) Testing Services (All types of testing services) with respect to agriculture and marine pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by preserving wildlife 3. Whether the Research and development activities imported by the appellant are not covered under Agricultural Extension service and therefore exempted vide Entry No. 54 of Notification No. 12/2017 -C. T. (Rate) dated 28.06.2017 as amended 4. Whether the testing services undertaken by them are agricultural extension services considering that the testing services ultimately result in imparting knowledge to the farmers rearing or cultivating the shrimp or prawns and therefore exempted vide Entry No. 54 of Notification No. 12/2017 -C. T. (Rate) dated 28.06.2017 as amended 5. Whether the training activities of RGCA to students, academia who are not directly involved in rearing of fish, aquaculture etc. are covered under SAC 9992 in as much as the SAC covers only commercial training and these are also not Agricultural extension Services and therefore exempted vide Entry No. 54 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 as amended. 6. Whether Artemia Cyst is classifiable under CTH 05.11 under CTH 2309 or CTH 03 All these points boil down to two major issues; i) the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch meant the technologies which meet the needs of the present without compromising the need of future generations to meet their own needs so that the environment is sustained and developed for the future generations and appellant s goal of providing sustainable technologies in aquaculture is only meant for preservation of environment. if the motto and activities of the appellant is seen, understood and appreciated as a whole in the spirit of Section 8(a) of the CGST Act instead of vivisecting the activities, it will be evident that the appellant are eligible for the exemption provided under sl.no. 1 of Notification No. 12/2017-CT (Rate). The lower authority had rejected their claim only because their mission statement did not specifically declare the same is not proper or correct They have taken support of certain judgments with respect to their claim against their second point of appeal. We consider the issues sequentially below. I. The authorities below have not properly taken into consideration and extended to them the benefit of the exemption under serial no. 1 and 54 of notification no. 12/2017 -C.T.(rate). 10.1 Sl.No.1 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may not be in pari materia. In the light of the above it would not be proper to transplant the provisions of one Act, which has a different object and purposes, into another Act for determining the scope of the exemption pertaining to charitable activities . Even in the letter C No 7162E(49)TRY 2001-2002 dated 12/04/2002 of the Commissioner of Income Tax II, Trichy, submitted by the Appellant in support of their cause, it is stated the registration of the Trust under section 12AA of the Income Tax Act does not automatically mean that its income will be exempt u/ s 11 12 of the Act, which will be examined independently by the Assessing Officer. Hence the term charitable activities figuring in serial number 1 of the notification, has to be understood only as per the plain meaning of the term as defined in Para 2(r) of Notification No. 12/2017 -C.T. (Rate) dated 28.06.2017, and is confined to activities relating to the preservation of environment including watershed, forests and wildlife. None of the activities undertaken by them and listed at para 8 above were found related to the preservation of environment including watershed, forests and wildlife, by the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not so in this case. Here the shrimp are reared in a totally artificial surrounding. Apart from saying that the society is providing sustainable technologies in aquaculture, the appellant has not established their claim for having their activities covered under the preservation of environment including watershed, forests and wildlife. When an exemption notification is based on end use, the mission statement of the assessee seeking to avail the exemption, can certainly be referred to for the purpose of ascertaining their activities and the object and purpose for which they are functioning. It is seen that the appellant who are the R D arm of MPEDA, and whose mission is to undertake research, give consultancy and technical services to the farmers, entrepreneurs, and scale up the technologies developed, etc. after assuring the commercial viability of aqua products undertakes various activities to attain the aim of the society, do not conduct activities covered under the preservation of environment including watershed, forests and wildlife. From the activities undertaken by them, we find that the appellant imports R D technologies, uses the same for augmenting the export p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, give consultancy and technical services to the farmers, entrepreneurs, and scale up the technologies developed, etc. after assuring the commercial viability of aqua products undertakes various activities to attain the aim of the society. By the construction of the exemption, it is clear and unambiguous that the exemption, is applicable only to Services relating to Preservation of environment when provided by an entity registered under Section 12AA of Income Tax Act and not to the entire activities of such entity. Therefore, we hold that the appellant as an entity in entirety is not exempted from payment of GST or in other words, the exemption under Sl.No. 1 of Notification No. 12/2017 -C. T. (Rate) dated 28.06.2017 is not applicable to all the supplies made by the appellant and therefore the appellant is required to get registered under GST Laws subject to them making taxable supplies and other conditions Spelt under Section 23 of GST Acts. 11. The next issue before us, pertaining to the above notification, is whether the Research and development activities imported by the appellant is covered under agricultural extension service-SAC 9986 and exempted vide Entry No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hunting, forestry, fishing, mining. SAC-9986 . 11.2 Further, with regard to the decision of Commissioner (Appeals) relied upon by the appellant, it is seen that the said decision has not been accepted by the department and an appeal has been filed before CESTAT. The same was subsequently withdrawn on monetary limits as per the litigation handling policy of the department. It appears that the withdrawal is due to change in the Monetary limits for filing appeals under section 35 R made applicable to Service Tax and therefore do not have reference value. Section 35R is given as under for ease of reference: Appeal not to be filed in certain cases. SECTION [35R. The Central Board of Excise and Customs may, from time to time, - (1) issue orders or instructions or directions fixing such monetary limits, as it may deem fit, for the purposes of regulating the filing of appeal, application, revision or reference by the Central Excise Officer under the provisions of this Chapter. (2) Where, in pursuance of the orders or instructions or directions, issued under sub-section (1), the Central Excise Officer has not filed an appeal, application, revision or refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been classified under SAC 998346 by the lower authority on the only ground that it does not fall within the ambit of the term support service not directly involving the fish farm, hatcheries or agriculture. The appellant contends that the same is to be considered as services relating to cultivation of plants and rearing of all life forms, considering that there is no requirement of direct or indirect use in the said provisions granting the exemption on services relating to rearing of all life forms. They further state that in any case and without prejudice the advance ruling authority ought not to have omitted to consider the benefit of the exemption on the above services as falling within the ambit of the agricultural extension services considering that the testing services ultimately result in imparting knowledge to the farmers rearing or cultivating the shrimp or prawns. The appellant has stated that Agriculture is defined in various ways and in wider sense, it covers all the activities of the appellant. 12.1 Entry No.54 of Notification No. 12/2017 -CT (Rate). is specific and the same is given as under: SI. No. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and knowledge to agricultural practices through farmer education or training. Testing activities undertaken by the appellant definitely do not fall under the agricultural extension service as the same as per definition in the notification is limited to application of research and knowledge through farmer education or training, whereas the testing done by the appellant does not involve farmer education or training. The testing done by them is a service to the farmers for a consideration. Therefore, in this count also we do not find any ground to interfere with the order of the lower authority. 13. The final issue before us is whether the training activities undertaken by RGCA to students, academia who are not directly involved in rearing of fish, aquaculture etc. are covered under SAC 9992 and liable to GST as held by the Original Authority and these are also not Agricultural extension Services and therefore exempted vide Entry No. 54 of Notification No. 12/2017-C.T.(Rate) dated 28.06.2017 as amended. 13.1 As detailed supra, it is clear that Agricultural extension services is limited to application of research and knowledge through farmer education or trainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational support services 597 999291 Cultural education services 598 999292 Sports and recreation education services 599 999293 Commercial training and coaching services 600 999294 Other education and training services nowhere else classified 601 999295 services involving conduct of examination for admission to educational institutions 602 999299 Other educational support services From the above schema, it is evident that the group 99929 covers Cultural education Services , sports and recreation education services , Commercial training and coaching services , Oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Original authority on the activity of training extended to student, academia, etc by the appellant to be covered under the SAC 9992 and taxable at 9% CGST under Sl no 30 of Notification No 11/2017 dt 28.06.2017 as amended and 9% SGST under Sl no 30 of Notification No. II(2)/CTR/532(d-14)/2017 vide G.O. (Ms) No. 72 dated 29.06.2017 as amended holds and do not need any interference. II) Classification of Artemia Cyst under CTH 0511 or under CTH 2309 or CTH 03. 14. The second issue to be decided relates to the classification of Artemia Cyst which was classified by the original authority under CTH 0511, while it is claimed to fall under CTH 2309 or CTH 03 by the Appellant. From the write-up furnished by the appellant, it is seen that Artemia is a very good live food for Aquatic cultivable organisms. Adult artemia also called Artemia biomass is food for adult/ brooder fish and shrimps. Adult artemia are harvested from ponds when required, are frozen and stored in -22 degree centigrade. This can also be dried as artemia flakes and stored in polythene covers. Artemia lays cysts/ eggs after 13- 15 days of maturation which can be preserved and kept for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere, should be obtained by processing animal materials to such an extent that the essential characteristics of the original material is lost in the processing. From the note furnished, it is seen that artemia biomass the product supplied by the appellant when incubated in seawater with light and aeration tiny artemia Nauplii comes out from cyst which is the feed for fish. In the process of transformation of artemia cyst/ biomass to artemia Nauplii, the essential characteristics of the original material is not lost in as much as the frozen embryo is hatched in hatcheries under certain conditions to have live nauplii, the feed. Following the chapter note as above, the artemia cyst/ biomass is not classifiable under CTH 2309. The CTH 0511, under which the original authority has classified the product reads as below: 0511 ANIMAL PRODUCTS NOT ELSEWHERE SPECIFIED OR INCLUDED; DEAD ANIMALS OF CHAPTER 1 OR 3, UNFIT FOR HUMAN CONSUMPTION 0511 10 00 - Bovine semen kg. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yonic eyes. (ii) Salted roes (e.g., of cod or mackerel) used as fishing bait. These can be distinguished from caviar substitutes ( heading 16.04 ) by their strong disagreeable odour and because they are usually packed in bulk. The heading excludes edible roes and milt ( Chapter 3 ). On a joint reading of the above notes from HSN and applying the same to the case at hand, the artemia are fertilized eggs for hatching, which is very much covered under CTH 0511 and we do not find any reason to deviate from the ruling of the lower authority on this. 14.2 The appellant has relied on the decision in the case of Atherton Engg P. Ltd Vs. Commissioner [2010 (256) ELT 358 (Cal.)] = 2010 (3) TMI 707 - CALCUTTA HIGH COURT , wherein the Hon ble High Court while setting aside the order of Tribunal dated 02.03.2006 [2007 (208) E.L.T. 464 (Tri.-Kolkata)] = 2006 (3) TMI 669 - CESTAT, KOLKATA with a direction to Commissioner of Customs to rehear and re-decide the matter, has opined that if the eggs did contain an embryo they could be classified as feeding materials for prawns and ought to have been so classified. These embryos may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the Hon ble High Court at Calcutta in writ Petition No. 2013 of 2005, has decided that the matter does not require remanding for reconsideration and has set aside the penalties. According vide the Final Order dated 02.03.2006 [2007 (208) E.L.T. 464 (Tri.-Kolkata) = 2006 (3) TMI 669 - CESTAT, KOLKATA , the demand of duty is confirmed and the penalties imposed are set aside. The decision of High Court at Kolkatta referred to by the appellant is against this Order wherein the Hon ble High Court has remanded the issue to re-hear and re-decide the case. 14.3 During the hearing it was pointed out to the appellant that the Hon ble Supreme Court in the case of Atherton Engg P. Ltd., versus Commissioner reported in 2002 (144) ELT A293 (SC) = 2002 (4) TMI 965 - SC ORDER have approved the decision of the Mumbai Tribunal in the case of Commissioner versus Atherton Engg P. Ltd., reported in 2001 (129) ELT 502 (Tri. -Mum) = 2001 (1) TMI 332 - CEGAT, MUMBAI holding that live Artemia cyst are classifiable under heading 05.11. The appellant in their further submissions has stated that on a reading of the said judgments it is noticed that the decision of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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