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TMI Blog2022 (6) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, and impugned before the first appellate authority, has its roots in the quantum of nitrogen without ascertainment of conformity with products of a kind used as fertilisers in note 6 of chapter 31 of First Schedule to Customs Tariff Act, 1975 with its emphasis on use before dovetailing it with the proposition of Learned Authorized Representative supra of the essentiality of nitrogen to the imported product. The jettisoning of the permission for import by the competent authority makes that deficiency in the order of the original authority obvious. With the impugned order departing from the framework of appellate resolution, the merging of the order of the original authority within it is not a proposition that is tenable; setting aside the order of the first appellate authority may not, of itself, impact the order of the original authority. Our appellate competence is limited to the propriety and legality of the order impugned before us which, in the peculiar circumstance of the decision of the first appellate authority, does not encompass the order of the original authority within it. As the two appeals, thus far, have been of the appellant herein, it would h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1975. He further contends that presence of zinc oxide suspension concentrate 39.5% (Zn) , reported in the analysis dated 22nd December 2015 of Regional Fertilizer Control Laboratory, is listed among micronutrient at serial no. 16, sub-heading 1(f) of part A of Schedule I of the Fertilizer (Control) Order, 1985 and that valid licence had been issued in consequence thereof. He argued that the first appellate authority had exceeded his jurisdiction in adopting a classification that had not been proposed as alternative in assessment of bill of entry and that, having rejected the substitute classification, the impugned order should have upheld the one declared by them. He cited the decisions of the Hon ble Supreme Court in Reckitt Colman India Ltd v. Collector of Central Excise [1996 (88) ELT 641 (SC)], in Hindustan Polymers Co Ltd v. Collector of Central Excise, Guntur [1999 (106) ELT 12 (SC)] and in Warner Hindustan Ltd v. Collector of Central Excise, Hyderabad [1999 (113) ELT 24 (SC)] in support of his contention that the exercise of vicarious authority to determine classification afresh should have been preceded by notice of intent. It is also pointed out that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notes in the chapter are not intended to restrict classification in chapter 31 when intended for use as fertilizer unless specifically and deliberately excluded by the notes of the chapter. iii. The circulars and precedent judgements, save the decision of the Tribunal in the dispute of the respondent themselves, have not examined the classification and scope of heading 3105 of First Schedule of Central Excise Tariff Act, 1985. iv. The presence of nitrogen in chelates is sufficient to bring it within the ambit of heading 3105 of First Schedule of the Central Excise Tariff Act, 1985 owing to its indispensability despite the negligibility of the quantity. Classification under heading 3105 claimed by the manufacturer cannot be denied to them. furnishes the framework for resolution of the dispute. 6. Learned Authorised Representative submits that This chapter also excludes micronutrient preparations which are applied, to seeds, to foliage or to soil to assist in seed germination and plant growth. They may contain small amounts of the fertilizing element Nitrogen, Phosphorous and Potassium, but not as essential constituents. in the Explanatory Notes of Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y objective of denying the classification claimed by the appellant herein. 8. The appellant had imported the impugned goods with necessary permissions under the Fertilizer (Control) Order, 1985; the goods are, in essence, fertilizers and there is no reason, except in extraordinary circumstances of non-fitment within any of the headings therein, to seek an alternative classification. The schema of chapter 31 of First Schedule to Customs Tariff Act, 1975 is critical to this; there are two principal types: fertilizers of animal or plant origin and mineral and chemical fertilizers. Taking into account the essentiality of macronutrients, the latter, constituting the bulk of the headings, are grouped again as nitrogenous, phosphatic and potassic corresponding to the trio: nitrogen, phosphorus and potassium as well as in all the permutations and combinations of the three. Products in packed form are assigned special enumeration within heading 3105 of First Schedule to Customs Tariff Act, 1975 besides other fertilizers as a residuary enumeration and it is on the appropriateness of this tariff item that the dispute revolves. 9. The nomenclatures of macronutrient and micronutrien ..... X X X X Extracts X X X X X X X X Extracts X X X X
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