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TMI Blog2023 (5) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... e products in issue before us does not make them plant growth regulator. It is also found support on this from the decision of this Tribunal in the matter of COMMISSIONER OF CENTRAL EXCISE MUMBAI II VERSUS ARIES AGRO VET INDUSTRIES LTD [ 2018 (6) TMI 1070 - CESTAT MUMBAI ] in which it has been held that micronutrients and macronutrients are required for agriculture as fertilizers and micronutrients are not plant growth regulators. The department has taken resort to the definition of fertilizer as provided in Fertilizer Control Order, 1985 for changing the classification which, according to us, could not have been done as the definition provided in other statutes, totally unrelated to statute in issue, cannot be made the basis for changing the classification. If the appellants are not complying with or are in violation of any provision of the said order, then it is for the authority mentioned therein to take necessary steps but on that basis the classification cannot be changed at all as the Excise Act is a complete code in itself and the authorities herein have to act within the four corners of the said statute. The impugned order is liable to be set aside as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April 2012 to July 2012 August 2012 to January 2013 May 2013 to December 2013 Septembe r 2012 to January 2013 August 2011 to March 2012 Demand 42,56,457 19,45,179 26.80.917 35,96,473 3,91,750 5,11,426 10,77,175 Penalty 4,25,000 1,90,000 2,68,000 3,60,000 40,000 1,07,000 51,000 2. The issue involved herein is whether the products Zymegold Plus and Dripzyme are classifiable under CTH 3808 - Plant Growth Regulator as re-classified by the department or under CTH 3101 - Fertilizer as claimed by the Appellant? 3. One fact which is relevant to these appeals is that M/s. Goldmuhor Agrochem Feeds Ltd. has merged/amalgamated with the appellants by virtue of the order dated 20.9.2013 (with appointed date as 1.10.2013) of the Hon ble High Court of Judicature at Bombay and now it s known as Godrej Agro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in their product, this Tribunal on the identical issue concerning Zymegold Plus for the period November, 2006 to June, 2011 vide its Final Order No. A/85667- 85668/2022 dated 29.7.2022 in Appellants own case in the matter of M/s. Goldmuhor Agrochem Feeds Ltd. vs. CCE, Kolhapur has decided the same in favour of the appellants by allowing the appeals filed by the appellants and held that the impugned product cannot be treated as Plant Growth Regulator and is classifiable as Fertilizer under CSH 3101. He also submits that Zymegold Plus contains 15% Seaweed Extract Powder that gives essential character to the products in issue, which is also classifiable under CSH 3101. According to learned counsel Nutrients cannot be considered as plant growth regulators. In support of his submissions, learned counsel placed reliance on the following decisions:- (i) Northern Minerals Ltd. vs. CCE; 2001(131) ELT 355(T) (ii) Leeds Kem vs. CCE; 2001(134) ELT 294(T) (iii) CCE vs. Chemcel Bio-Tech Ltd.; 2007(211) ELT 414 (T) (iv) CCE vs. Karnataka Agro Chemicals; 2008(227) ELT 12(SC) (v) Jai Shree Rasayan Udyog Ltd. vs. CCE; 2015(316)ELT 338(T) (vi) CCE vs. Aries Agro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of revenue reiterated the findings recorded in the impugned order and prayed for the dismissal of the Appeals. 7. We have heard learned counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the written submissions and case laws filed before us. There is a difference between fertilizer and plant growth regulator. A fertilizer will promote growth of the plant by providing nutritional support and will not inhibit it, whereas a Plant Growth Regulator stimulates plant growth without providing any nutrition to the plants. It s like a tonic which promotes/inhibits the growth by affecting the structure at the physiological level. Whereas fertilizers provide the life giving nutrients without which the plant cannot grow. Fertilizer is a material organic or inorganic, natural or synthetic which supplies one or more of the chemical elements required for plant development. Each of the essential nutritional elements (viz. macro nutrient element like nitrogen, secondary nutrient element like sulfur and micro nutrient element like zinc) has a definite and specific function to perform in the growth and the development of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a plant growth regulator or a fertilizer. It has been specifically recorded in the said order that although the enzymes like 6-BA and 4-CPA are present which help in plant growth regulation but they are only in small traces i.e. 0.26% and 0.53% prior to 3.7.2010 and for the period after 3.7.2010 even the traces are absent. Therefore the impugned goods cannot be classified as plant growth regulator just because the traces of 6-BA and 4-CPA are present. The relevant paragraphs of the aforesaid order (supra) are reproduced hereunder:- 6. . The goods are to be classified as per their description and the general description should not be preferred before the specific description. Moreover, in terms of Rule 3(b), mixture consisting of different materials is to be classified with reference to the major component which gives it the essential character. We find that in the case of impugned product, the major constituent is seaweed powder extract. The learned adjudicating authority has not appreciated the provisions of Rule 3(a) and (b) correctly and has jumped directly to Rule 3(c) of the General Interpretation Rules, which is not correct to our understanding. The classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wth regulator. In view of the aforesaid decision, the issue so far as Zymegold plus is concerned, is no longer res integra. Rather the appeals in hand are on a better footing as w.e.f. 3.7.2010 i.e. for the periods in issue before us, the appellants have stopped using 6- BA 4-CPAin their products. 9. Although argument has been made before us that the products in issue have been reclassified under the category of plant growth regulator as they are based on seaweed extract but we are afraid that the aforesaid decision has considered that aspect also and held that when seaweed and other algae are used for various purposes like pharmaceutical products, cosmetics, human consumption, animal feeding and fertilizers and when they are used as fertilizers they should fall under heading 3101. In yet another decision in the matter of M/s. Northern Minerals Ltd. vs. CCE, Delhi; 2001(131) ELT 355 (Tri.- Del.) it has been held that products based on seaweeds which are basically growth enhancer with micronutrients, cannot be classified under CTH 3808 as plant growth regulator. Otherwise also seaweed extract powder are fertilizer in nature and classifiable under Tariff Item 31010099 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhaustive and more growth substances are being discovered in this category. PGRs are naturally produced by plants and they act by controlling or modifying, plant growth processes such as formation of leaves and flowers, elongation of stems, development and ripening of fruits etc. Synthetic organic chemicals are also used as PGRs and are industrially produced and marketed. A list of some of the PGRs industrially produced in India is enclosed with the reply of IARI. 3.2 It would thus be noted that PGRs are different from nutrients, be it macronutrient or micronutrient . The difference between PGR and micronutrient has been clearly brought out in the reply from ICAR. PGR as a substance is specifically covered under CETH 3808. More specifically , Gibberellic acid and Plant Growth regulators are respectively covered under tariff item 3808 9330 and 3808 9340. 11. Presence of micronutrients in the products in issue has been taken against the appellants by the learned commissioner. It is interesting to note that plant growth regulators are grouped under CETH 38.08 alongwith other insecticides, fungicides, herbicides and disinfectants, all of which are intended to destroy pathoge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es significance. What is important to be seen is how the consumer looks at a product and what is his perception in respect of such product. The user s understanding is a strong factor in determination of classification of the products. 13. A strong reason which wade into the mind of learned commissioner while passing the impugned order is the order passed by his predecessor in appellant s own cases on identical issue for the earlier period but we are afraid that it cannot be accepted, as the Tribunal in appellant s own case for the earlier period vide its order dated 29.7.2022 has allowed the Appeals filed by them for the period November, 2006 to June, 2011 and held that the product Zymegold Plus is a fertilizer and we see no reason to differ with the same as the department has failed to produce any document to show that the same has been challenged in appeal anywhere by the department or that any stay of the said order has been obtained by the department. The reasoning given by the Tribunal for Zymegold Plus is equally applicable for Dripzyme also as it also contains seaweed extract based product alongwith various other nutrients. It contains soluble like seaweed extracts, p ..... 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