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TMI Blog2020 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriately be classified under 1504 rather than 2901. The appellants have taken a plea that their product contains unsaponifiable matter in the range of 85% and therefore, it cannot be classified under 1504 as oil - We find that there is no reference to the percentage of unsaponifiable matter with respect to the classification under heading 1504. Even going by the principles of ejusdem generis or Noscitur a sociis , the impugned goods being of animal origin are rightly classifiable under Chapter 1504. The test reports give a fair idea of the nature and characteristics of the product. In the instant case, CIFT and Customs Laboratories have reported that the impugned product is fish oil. Therefore, we find that it cannot be classified under Chapter 2901 as saturated or unsaturated acyclic hydrocarbons along with ethylene, propene, butene, acetylene, heptene etc. It is of a great common sense that any organic matter would contain hydrocarbons and for that very reason, it cannot be classified under the heading applicable to hydrocarbons. If such an approach is taken entire Customs Tariff as far as it deals with living beings, goods or plant or animal origin would become redundant. More ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Policy. On an appeal preferred by the appellants, CESTAT, vide Final Order No.21933-21934/2018 dated 27/12/2018, remanded the issue back to the adjudicating authority for getting the goods retested at an institution having expertise in oceanography. However, on a similar order passed in respect of similarly placed importer i.e., M/s. Asha Biochem, department has filed a ROM in appeal No. C/21347/2018-DB. This Bench vide Final Order No.21933-21934/201 dated 27/12/2018 has accepted the ROM and modified the order to get the test undertaken at such institution that has expertise. As no institute was available for testing the goods, as per oceanographic parameters, the samples were again sent to CIFT who re-confirmed the test results indicated by them earlier. Customs Department in order to re-confirm the findings, of CIFT, sent the samples to Customs House Laboratory, an NABL accredited laboratory, who also confirmed the findings of the CIFT. Consequently, Commissioner passed the OIO 09/2019-20 dated 23/7/2019, in de novo confirming the classification of imported goods under CTH 1504 2090. Hence, this appeal No. 20876/2019. 2. Learned counsel for the appellants submits that Squalene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel also submits that Customs issued a letter dated 15-3-2019 stating that they are unable to find any Institutions to do the required analysis. Container Freight Station (CFS) where the Customs detained the Cargo, vide letter dated 8-4-2019, reported that they were going to close down the unit and therefore the Appellant was directed to remove the Cargo without further delay. Customs notified the appellant on 28-5-2019 that they had conducted the analysis. In the said report, it is clearly indicated that the unsaponfiable matter in the impugned goods is 85.82%; Bureau of Indian Standards stipulates that for fish oil the Saponification value has to be in between 185-200 and the percentage of unsaponfiable matter percentage has to be 4%. From this, it is revealed that the Cargo is not Marine oil and it does not have the characteristics of the same. 6. Learned counsel also submits that the Appellant preferred Writ Petition No. 16986/2019 for compliance of Hon'ble Tribunal Order. Hon'ble High Court, vide interim order dated 15-7-2019, directed the Customs to pass an order within 3 days. Commissioner passed the impugned order on 23-7-2019. Commissioner passed the very same ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of Customs brokers, it was observed that the content is light yellow liquid, of bad fishy smell packed in metal drums; samples were drawn from the consignment and sent to the CIFT (Central Institute of Fisheries Technology), Cochin, who vide Certificate dated 6/4/2018, stated that the oil received for inspection falls under the category of "Fats and Oil and their fractions, of fish or marine mammals, whether or not refined, but not chemically modified"; based on the said test report, the goods under import were held to be classifiable under CTH 1504 20 90; However, when the importer did not agree with the said test report, a reference was made again to CIFT, who vide letter dated 4/5/2018, clarified that the sample analysis was done using Perkin Elmer Gas chromatograph FID equipped with a column specific for the analysis of fatty acids and hydrocarbons present in oils. 10. Learned Authorised Representative submits that consequent to CESTAT, vide final Order, No.21933-21934/2018 dated 27/12/2018, directed for re-testing the item in an institution having expertise in oceanography; as no institute was available for testing the goods as per oceanographic parameters, the samples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th animal or vegetable fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes. Heading 150420 is as follows: 1504 FATS AND OILS AND THEIR FRACTIONS, OF FIST OR MARINE MAMMALS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1504 10 - Fish liver oils and their fractions 1504 10 10 --- Cod liver oil --- Other 1504 10 91 ---- Squid liver oil 1504 10 99 ---- Other 1504 20 -Fats and oils and their fractions of fish, other than liver oils 1504 20 10 --- Fish body oil 1504 20 20 --- Fish lipid oil 1504 20 30 --- Sperm oil 1504 20 90 --- Other 1504 30 00 -Fats and oils and their fractions, of marine mammals As per ITC (HS), 2017 SCHEDULE 1 - IMPORT POLICY the goods falling under Exim Code (corresponding to CTH) 1504 20 90 are categorised under "prohibited" goods for import. 13.1. Chapter 29 of Customs Tariff covers organic chemicals; Note 1 (a) to the Chapter envisages that except where the context otherwise requires, the headings of this chapter applies only to (a) separate chemically refined organic compounds, whether or not containing impurities. Heading 2901 covers goods as follows: I.-HYDROCARBONS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 of First Schedule to Customs Tariff Act, 1975 are intended for "separately defined organic compounds‟, whether or not containing impurities. Correspondingly, there are contra exclusions of "separately defined organic compounds‟ in other chapters implying that conflict of choice between a specific heading in another chapter and in this chapter, the goods are, inevitably, to be classified in chapter 29. On the other hand, notes in chapter 15 of First Schedule to Customs Tariff Act, 1975, which Revenue considers to be more apt, is devoid of such a restrictive condition. Hence, a conflict between a specific heading in chapter 15 and chapter 29 would be resolved by classifying under the more specific heading of the two. Therein lies the dilemma for the claim of the appellant for coverage is under a residual entry that is handicapped thus" 15. Going by the above order of CESTAT, the conflict between a specific heading in Chapter 15 and Chapter 29 would be resolved by classifying the same under more specific heading of the two. We find that Learned AR for the Revenue contends that in view of the specific exclusion of goods under heading 1504, the goods cannot be classifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the impugned product is fish oil. Therefore, we find that it cannot be classified under Chapter 2901 as saturated or unsaturated acyclic hydrocarbons along with ethylene, propene, butene, acetylene, heptene etc. It is of a great common sense that any organic matter would contain hydrocarbons and for that very reason, it cannot be classified under the heading applicable to hydrocarbons. If such an approach is taken entire Customs Tariff as far as it deals with living beings, goods or plant or animal origin would become redundant. Moreover, there is no reason as to why a report given by a professional institute such as CIFT and accredited laboratory such as Customs Laboratory. We find that the learned Adjudicating Authority has relied upon the case of SKOL Breweries Ltd. 2017 (7) GSTL 102 (Tri. Mum) wherein it was held that expert opinion of independent body regarding the nature of the goods cannot be ignored. Therefore, we find that the report given by CIFT and Customs Laboratory cannot be ignored. The importers, on the other hand, did not produce any test report in their favour. 17. The importers argued that DGFT vide Letter dated 05.09.2019 addressed to M/s. Asha Biochem have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal in the order referred to above, it behooves the administration of India, as a responsible constituent of the polity of nations comprising of responsible humanity, not to be a willing accessory in the reprehensible slaughter of endangered species. In the context of this prohibition, the geographical origin, or the ultimate destination, of the goods is not relevant; irrespective of the source and consumption, the taint of inhumanity, and so promulgated by law, should not be allowed stain the public record of the country. Neither can the precedence of the past justify the continuance of a statutorily criminalized deed. We find, however, that based on the submissions of established practice penalty cannot be imposed just because Customs authorities have taken steps to correct the classification. During the course of arguments, learned counsel for the appellants, have requested that in case it is held that the goods are not permissible to be imported, the same may be allowed to be re-exported. We find that such a request needs to be made before the proper authority who will take a decision in accordance with law and facts of the case. 19. In view of the above, the appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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