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TMI Blog2019 (11) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... porter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Relevant date for appeal - In the absence of such speaking order what could be the relevant date for appeal in terms of Section 128 of Customs Act, 1962? - HELD THAT:- It is crystal clear that in cases where the reassessment is done contrary to the assessment done by the importer and where the assessee does not accept such reassessment in writing, the proper officer shall pass a speaking order under reassessment; in the instant case, the appellants have claimed classification under CTH 23099090 whereas the department has assessed under CTH 21022000; therefore, it is evident that the assessment has been done contrary to the claim of the appellant; the appellants have registered protest also; it is not the case of the department that the appellants have accepted the reassessment in writing; therefore, in terms of Section 17 (5) of Customs Act, 1962, the department was under obligation to issue a speaking order. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Zymonutrients Pvt.Ltd. and M/s Zeus Biotech Ltd. had imported inactive dried yeast animal feed supplement and classified the same under CTH 23099020 claiming the same to be preparations of a kind used in animal feeding . However, the department reclassified the same under CTH 21022000. The appellants have paid the duty under protest and cleared under test bond. Test report confirmed the goods are either not fit for human consumption or to be inactive dried yeast . The department has subsequently finalized the Bills of Entry rejecting the classification claimed by the appellant. The appellants have appealed against this orders before the Ld. Commissioner (Appeals) contending that though provision assessment was made order under Section 17 (5) of Customs Act, 1962 was not issued and therefore all the appeal were filed in time. Commissioner (Appeals) has dismissed the appeal of the appellant on merits and though holding that it was mandatory for the department under Section 17 (5) of Customs Act, 1962 to issue its speaking order, rejecting some appeals, stating that they are time-barred being filed beyond the condonable period from the date of Bill of Entry. Hence, these appeals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case. She relies upon the following cases to support that classification of the goods is correct under 2102000: (i) Kastri Foods and Chemicals Vs CCE 1995 (77) ELT 584 (Tri.-Del.) (ii) Kasturi Foods and Chemicals Vs CCE 1995 (80) ELT 169 (T) (iii) Marco India Vs CC Maras 1994 (74) ELT 5 (SC) 4.2 Ld. A.R submits that as per the appellants, the goods cannot be consumed by human beings and merit classification under preparations of a kind used for animal feed and the appellant dependent on the letter issued dt.12.7.2011 by the Central Food Laboratory; the test reports received in the instant case, from CRCL, described the product to be inactive yeast; appellants cannot rely on rejection of sample by CFL stating that the same was not fit for human consumption. She further submits that as in the present case provisional assessment was in terms of Section 18 (1) (b) of Customs Act, 962 and thus, speaking order in terms of Section 17 (5) of Customs Act, 1962 is not required to be issued; further, in terms of Section 128 (1) of Customs Act, 1962 any decision or order passed by officers of Customs can be appealed before the Commissioner (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. We also find that Ld. Commissioner (Appeals) has also accepted in principle that the order under Section 17 (5) of the Customs Act, 1962 was mandatory. Therefore, we find that the Ld. Commissioner was not correct in rejecting some of the appeals on the basis of time bar. However, a question arises, under the circumstances, as to what should be the relevant date for the purpose of filing an appeal under Section 128 (1) of Customs Act, 1962, in cases bills of entry assessments have been finalized contrary to the claims of the appellant and without issue of a speaking order. It could not be the intention of the legislature that the aggrieved party wait indefinitely for such order to be issued before proceeding to appeal. In such cases, the provision of Section 128 (1) themselves take care and by virtue of the provisions, the mere finalization of a Bill of Entry itself becomes an order or communication of the order. Therefore, the appeals are required to be filed in such circumstances within a time period from the date of such reassessment / finalization. 9. Coming to the issue of classification of Enzymes imported by the appellant as to whether the same would be merited c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . . . . . . ----Fish meal in powdered form. . . . . . . . . . . . . . . . ----Other . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . . ----Other . . . . . . . . . .. . . . . . . . . . . . . . . .. . . . . . . . . kg. kg. kg. kg. kg. kg. kg. 30% 30% 30% 30% 30% 30% 30% - - - - - - - On going through the above classification, we find that CTH 2102 covers yeasts (active or inactive); other single cell micro organisms, dead (but not including vaccines of Heading 3002); prepared baking powders and under 8 digit heading 21022000 inactive yeasts, other single-cell micro-organisms dead. 10. Going by the test reports of CRCL, impugned goods are inactive yeast; in view of the explanatory notes to chapter 21 dried ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing . Therefore, it is clear that the chapter 23 shall include products of a kind used in animal feed. However, the emphasis that they are not elsewhere included. As submitted by the Ld. A.R and as held by the Commissioner (Appeals) heading 21022000 specifically mentions yeast active or inactive. Therefore, when yeast has a specific mention under heading 2102, that cannot be classified under any other heading under chapter 23 in view of the chapter note mentioned above. Therefore, we find that the classification arrived by the department and upheld by the Ld. Commissioner (Appeals) is consistent with the relevant chapter heading and notes and also general interpretative rules for classification wherein it is specified under rule 3 (a) of Interpretative Rules that the heading which provides most specific description shall be preferred to heading providing a more general description. We find that issue of import of Vitamin E 40% to 50% and claimed to be animal feed came before the Tribunal for discussion and that Tribunal in the case of CC Vs Sonam International - 2012 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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