9911796707
TMI Blog2023 (4) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... red as insecticide. Also, on considering the literature which have been pointed out by the learned advocate for the appellant wherein, the Traicontanol 0.05% EC has been considered as the plant growth promoter. Since product MIRACULAN is based on Traicontanol 0.05% EC which is nothing but an insecticide as it requires a registration under Section 9(3) of the Insecticides Act, 1968 with the Directorate of the Plant Protection, Quarantine and Storage, Faridabad. From the literature as well as from the registration obtained by the appellant, it is found that the product MIRACULAN which is nothing but Traicontanol equivalent to 0.05% EC is a product of the insecticides. Whether the MIRACULAN can be considered as a plant growth regulator? - HELD THAT:- On going through the relevant entries of the Central Excise Tariff i.e. 380810 and 380830, it becomes clear that plant growth regulators are the products which fall under the category of Herbicides, anti sprouting products and plant growth regulators classifiable under sub heading 380830 while the product which is under consideration is nothing but a Traicontanol which is an insecticide and thus, we are of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een contended by the department that the appellant s product is solely marked by M/s. Dow Agro Science as plant growth regulator and since the marketing agency considers the subject product as Plant Growth Regulator, the appellant s should have claimed abatement of 30% only from their MRP Value after 01.06.2006. 2.1 On the basis of the above contentions, a show cause notice dated 30.06.2008 came to be issued on the following points; (i) the product viz. MIRACULAN should not be classified under Chapter Sub-heading no. 3808 3040 as Plant Growth Regulator during the period from 1/6/2006 to 29/12/2006 and thereafter because change in Tariff sub heads from 29/12/2006, and therefore the subject product should be classified under Chapter Sub-heading no. 3808 93 40; (ii) The amount of duty Rs. 1195677/- (Rs. 846626/- (+) Rs. 349051/-) claimed as Refund vide their applications dated 26/5/2007 and dated 15/4/2008 should not be rejected under the provisions of Section 11B of Central Excise Act, 1944. The above referred show cause notice was adjudicated by Order-In-Original dated 06.06.2011 wherein, the learned Deputy Commissioner confirmed the charges of the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid by them under protest and therefore, it was required for the department to issue show cause notice under the provision of Section 11A of the Central Excise Act, 1944 even after filing refund claim within the prescribed time limit, no show cause notice under Section 11A has been issued to them. 3.1 As regard to classification of their product namely MIRACULAN , the main contention of the learned advocate has been as under :- i) The case of the department is that the product, in question, is a Plant Growth Regulator falling under the Chapter Sub Heading No.38083040/38089340 and hence the rate of abatement should have been considered @30% instead of 35%. ii) In this case, the appellant further submits that the contentions of the department are not backed by any documentary evidences as the said product is not a plant growth regulator but it is simply a sort of an insecticide which enhances and promotes the growth of the plant. 'MIRACULAN' contain 'Tricontanol' which is an insecticide and the said product contains only 0.5% by weight. The said product i.e., MIRACULAN is being marketed only as Plant Growth Promoter and not as Plant Growth Regulator. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r'. vi) The said Chemical Examiner has not given the detailed reasons to conclude the nature of product, under dispute, as 'Plant Growth Regulator'. Thus, the classification of their product as Plant Growth Regulator is not based on any technical analysis. 04. We have also heard the learned Departmental representative who has reiterated the findings given in the Order-In-Appeal. 4.1 The issue before us to decide whether the product MIRACULAN which primarily contains Traicontanol equivalent to 0.05% of weight can be classified as a plant growth regulator or a plant growth promoter. We find that primary basis of the department to hold that subject product MIRACULAN is a plant growth regulator is on the basis of the chemical test report given by departmental chemical examiner which says that the product contains Traicontanol equivalent to 0.05% by weight and may be considered as a plant growth regulator. We find that as per the certificate of registration obtained by the appellant from the Directorate of the Plant Protection, Quarantine and Storage, Faridabad which works under the Ministry of Agriculture, Government of India as per requirement of Section 9(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anol but also to the preparations containing Triacontanol and the appellant has been complying with those provisions of the Insecticides Act, 1968. Section 38 of the Insecticide Act specifically provides that the provisions of said Act will not apply to any substance specified or included in the schedule or preparation containing any one or more substances, if such substance or preparation is intended for the purpose other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant or animal life not useful to human beings. If the appellant‟s contention is that Vipul Booster is not used or capable of being used as an insecticide, they could have claimed exemption under Section 38 of the Insecticides Act and they need not have followed any of the procedures prescribed under the said Act or the Rules made there under. However, they have not exercised this option available under the law. This clearly shows that the appellants, by their very conduct, have agreed that their product is an insecticide coming within the purview of the Insecticides Act. If they did not want to market their product as an insecticide at all they shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is whether there is any suppression or willful mis-statement of facts on the part of the assessee with an intent to evade duty. The allegation in the show cause notice is that the appellant failed to bring to the notice of the department the fact that Triacontanol is an insecticide under the provisions of the Insecticides Act, 1968, which is a material fact to decide the classification of the said product and they also failed to submit to the department copies of the certificate of registration obtained under the Insecticides Act. In view of these omissions, they have suppressed the facts and willfully mis-stated the facts with an intent to evade duty. 8.1 The composition of product was known to the department right from 1989 onwards. The product Triacontanol, which is the active ingredient was brought under the Insecticide Act, 1968 vide gazette notification dated 3-1-1996. Thereafter, the appellants took registration under the said Act and started complying with the procedures specified thereunder. Merely because they did not inform the department of their product registration under the Insecticides Act, 1968, it cannot be held that they have suppressed the facts wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Tribunal‟s order was set aside by the Hon‟ble Apex Court with a direction to re-consider the case afresh, the order-in-appeal dated 30-3-2007 does not survive. In view of our finding that the product Vipul Booster‟ is an insecticide classifiable under heading No. 3808.10 of the Central Excise Tariff, the aforesaid duty demands will sustain subject to the demand being within the normal period of limitation. However, as the issue relates to classification, penalties are not warranted. Accordingly we allow the appeals filed by the department subject to the modification as mentioned above. 11 . In sum, we hold that the product Vipul Booster manufactured by the appellant, which has Triacontanol 0.1% w/w as its active ingredient is classifiable under heading No. 3808.10 as an insecticide under the Central Excise tariff. Accordingly, the valuation of the product has to be done in accordance with the provisions of Section 4A of the Central Excise Act, 1944. However, as the department has failed to prove any suppression or wilful mis-statement of facts with an intent to evade duty on the part of the appellant, the demand of duty has to be restricted to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
