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TMI Blog2024 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... is type of Protein is called as Collagen and Collagen Protein is the most abundant of the Protein in the Fish Scale are not at all in dispute. Demineralisation is considered as the primary procedure for preparation of the scale for the extraction of collagen. Based on the above it is very clear that the product imported by itself is not a protein but the protein is extracted only after further processing is being undertaken by the appellant - It is also admitted that after certain processes the protein is extracted and then exported. Therefore, the question arises whether the item is classifiable as demineralised fish scale under chapter heading 0511 or as protein under CTH 3504. Whether the product is to be classified under chapter heading 0511 9190 based on the description is demineralised fish scales allowed to be classified under chapter heading 3504 0099 as claimed by the appellant? - HELD THAT:- In the present case, the test reports and the technical literature clearly establish that the product imported is demineralised fish scale. As observed by the apex court in the above case the content of protein cannot establish the product as a protein instead it is only a source of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly prospectively for the consignments where samples were drawn and thereafter. Accordingly, the demand is upheld for 6 bills of entry from Sl.no 43 to 48. The other 9 bills of entry which are provisionally assessed are to be reassessed by reclassifying the same under Chapter Heading 0511. Whether the appellant had made any willful mis-declaration of the description of the goods which attracted invocation of extended period under the provisions of the Customs act 1962 which warranted imposition of various penalties? - HELD THAT:- Since it is a classification issue and the question of benefit of the scheme is allowed for 42 consignments and the other 9 consignments are under provisional assessments, the question of redemption fine or penalty does not arise. Appeal allowed in part. - HON BLE MR. P. A. AUGUSTIAN, MEMBER (JUDICIAL) AND HON BLE MRS R. BHAGYA DEVI, MEMBER (TECHNICAL) Appearance: For the Appellant : Mr. V. Sridharan, Sr. Advocate. For the Respondent : Mr. P.R.V. Ramanan, Special Counsel. PER R. BHAGYA DEVI: The appellant M/s. Nitta Gelatin India Limited used to import goods declared as fish protein and since 2012 classified the same under Customs Tariff Heading 3504 0099 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecies known to be a very good source of protein. The Fish Scales are washed thoroughly with water and then subjected to treatment with diluted hydrochloric acid, the acid treatment removes inorganics/minerals like Calcium Present in the Fish Scale and this process is called Decalcification or demineralization. The resultant product essentially consists of protein and moisture, with traces of inorganic substances (i.e. crude ash) and other impurities. The decalcified Fish Scale contains various types of proteins of which Collagen Protein Type I is the major ingredient. Proteins are made up of diverse amino acids, out of them the main amino acids that make collagen are Proline, Glycine and Hydroxyproline. These amino acids group together to form Protein fibrils in a triple helix structure. This type of Protein is called as Collagen and Collagen Protein is the most abundant of the Protein in the Fish Scale. It is submitted that the above information of the product is corroborated by various test reports obtained by the Department from external agencies, of the samples drawn by the Department from the imported goods. B) To substantiate their above claims the appellant also relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etetraacetic acid (EDTA), achieving efficiencies greater than 90%. However, the selection of the chemical agent is of great importance due to the loss off collagen with the use of these acids. After the removal of non-collagen proteins, demineralization, and defatting of the byproducts, the collagen is extracted. The properties and performance of collagen depend on the execution procedures; therefore, it is important to establish the right conditions. C) The learned Counsel also relied on the Relevant extract from article titled Isolation and Characterization of Fish Scale Collagen of higher thermal stability authored by Falguni Pati and others published in the Journal Bio-source Technology which reads as under: Collagen is the most abundant protein nearly 30%of total proteins in the animal body. It is the major component of extracellular matrix and is vital for mechanical protection of tissues, organs, and physiological regulation of cellular environment (Kielty et al. 1993) Type I collagen has also been extracted from skin, bone, fins, and scales of fresh water and marine fishes. Extraction off collagen from fish scales: Extraction of collagen from fish scales was done in two seq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Protein from fish scale is produced by acid treatment of fish scales to remove minerals. The fish scale is constituted as a form of protein, calcium, phosphorous and moisture. The scale is treated with dilute Hydrochloric Acid the minerals like calcium and phosphorous gets dissolved into acid to form a complex called Mono Calcium Phosphate (MCP) and the balance remains in the solid form is the protein in the scale. This protein is recovered and washed with water to remove the remaining acid and MCP content. This protein substance is dried to reduce moisture content. E) To justify their classification the Learned Counsel submits that One of the very first suppliers of the product in question i.e., Seiko Trading Co., Ltd , indicated the description of the goods in question as China Origin dry fish protein Tilapia) in the offer sheet dated 08.04.2011 addressed to the Appellant. This is the description Suo-moto adopted by the said supplier, without any prompting or a leading suggestion by the Appellant. The same description as Fish Protein was also mentioned in purchase order, packing list, certificate of analysis and invoice of the said supplier. This buttresses the fact that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to CIFT by Superintendent of Customs, Group VII and reads as under: Based on the above letter, it is submitted by the learned counsel that the CIFT had clearly opined that the sample amino acid composition appears to be fish protein from fish scale. Technical opinion obtained by appellant from Dr. M D Nair Ph. D FNAE (Consultant to Healthcare Industry) inter alia concludes that Terminology used by the Appellant (fish protein) is appropriate and acceptable from a scientific point of view ; G) The relevant portion of the test report dated 20.5.2016 of CIFT for first two samples is reproduced below PART C: TEST RESULTS Sl. No. Test Test Method Unit Results obtained . Sample-I 1. Calcium AOAC 2012 Ppm 84.52 2. Potassium AOAC 2012 Ppm 8.181 Sample-II 1. Calcium AOAC 2012 Ppm 423.8 2. Potassium AOAC 2012 Ppm 15.05 Sl. No. Test Test method Unit Result Obtained . Proximate composition *1 Moisture AOAC 2012 g% 10.96 11.27 *2 Ash AOAC 2012 g% 0.297 0.07 *3 Protein AOAC 2012 g% 88.9 91.4 *4 Fat AOAC 2012 g% 0.69 0.228 * Not under NABL scope Report dated 8.6.2016 of CIFT of the third sample reads thus: Sl. No. Test Test Method Unit Results obtained 1. Moisture AoAC Official Methods (2012) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by CMFRI and by CIFT, show that imported goods are essentially and practically proteins only, apart from moisture and traces of inorganic impurities i.e. crude ash. Hence, they are indeed Fish Protein based on the nature and composition of the imported goods. Equally, and without any contradiction, the goods can be described as Decalcified Fish Scale or demineralized fish scale which is based on process undertaken to obtain the product in question. This does not at all imply or mean that Fish Protein is not decalcified fish scale or vice versa. The term Decalcified Fish Scale and Fish Protein are not mutually exclusive terms/expressions which is conveniently glossed over by the Department. I) It is further submitted that in all the letters dated 3.5.2016, 12.5.2016 and 12.5.2016 the department queried the testing agencies as to whether the samples are processed fish scale or not. Accordingly, CIFT vide letter dated 20.5.2016 vide letter dated 8.6.2016 reported that samples are processed fish scale duly demineralized. Similarly, letter dated 20.5.2016 of CMFRI stated the three samples are processed Fish Scale. Letter dated 09.08.2016 of CIFT in specific reply to letter dated 14.7.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are numerous types of protein. The proteins specifically enumerated in heading 3501, 3502, 3503 will fall under the respective heading. All other proteins fall under heading 3504. The above is also supported by HSN Explanatory Notes of Heading 3504 which states that Heading 35.04 inter alia covers: Glutelins and prolamins which are endosperm proteins of seeds, Globulins which are extracted from seeds, Glycinins found in soyabeans, Keratin found in hair, nails, feathers, horns, claws of animals Nucleoproteins isolated from yeasts through precipitation or filtration Protein isolates obtained by treating the de-oiled vegetable sources. A plain reading of explanatory notes makes it clear that the said heading expressly covers Keratin found in hair, nails, feathers, horns, claws of animals. Accordingly, heading 3504 covers both plant and animal-based proteins. Therefore, it is claimed that the Ld. Commissioners observation that in view of the presence of impurities, the goods cannot be classified under Heading 3504 is factually incorrect. It is practically impossible to obtain 100% pure protein. All test reports without any exception confirms that the product in question has high amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary according to the product. These simple processes are specified in explanatory notes under respective headings. While in some cases only washing or scouring is permitted (human hair of CTH 0501), in other cases such as bones even de-gelatinization is regarded as simple process. Only in respect of bones treated with acid, heading 0506 tolerates and retain them with chapter 5. Otherwise, for other products of Chapter 5, simple process of preservation alone is permitted. All products of Heading 0511 will remain therein only when they are fresh or preserved. In other words, only fresh fish scales or preserved fish scales can fall under Heading 05.11. If any process other than preservation are undertaken, that would take the product out of the Heading 0511. The fish scales in question are imported by the Appellant after they have been reacted/treated with dilute sulphuric acid and thus are post demineralization/ decalcification and can no longer be regarded as fresh or simply preserved. Expert opinion of Dr. M.D. Nair Ph. D DNAE has expressly confirmed that irreversible chemical process has taken on the imported goods by demineralization, hence, it cannot be described as simple prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms from import licensing angle. N) Notification No. 96/2009-Cus dated 11.09.2009 grants exemption to materials imported into India against Advance Authorization in terms of para 4.1.3 of the Foreign Trade Policy. relevant extract of Notification 96/2009 dated 11.9.2009 is reproduced below - ..the Central Government, hereby exempts materials imported into India against an Advance Authorization issued in terms of paragraph 4.1.3 of the Foreign Trade Policy xxx from the whole of the duty of customs leviable thereon, xxx subject to the following conditions, namely :- xxx (iii) that the materials imported correspond to the description and other specifications where applicable mentioned in the authorization and the value and quantity thereof are within the limits specified in the said notification . There is no dispute that value and quantity of goods imported by the Appellant are within the limits stipulated in the Advance Authorization and all other requirement of notification 96/2009 has been fulfilled by appellant. A bare perusal of the Notification reveals that it exempts all goods, irrespective of the classification. As already stated supra, the imported goods are indeed Fish Prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 898, as incorporated by Live Stock Importation (Amendment) Act, 2001 (Act No. 28 of 2001, 29th August, 2001), or as amended from time to time As per Section 2(d) of the Live-stock Importation Act, 1898, reads thus: live-stock products include meat and meat products of all kinds including fresh, chilled and frozen meat, tissue, organs of poultry, pig, sheep, goat; egg and egg powder, milk and milk products; bovine, ovine and caprine, embryos, ova, semen; pet food products of animal origin and any other animal product which may be specified by the Central Government by notification in the Official Gazette. Vide Notification S.O. 2666 (E), dated 16.10.2014, issued by the Department of Animal Husbandry, Dairying and Fisheries in the Ministry of Agriculture, the Government notified a number of livestock products which require a Sanitary Permit for import. Amongst the various livestock products so notified, the show cause notice and O-I-O refers to and rely upon only SI. No (xiv) of the said Notification as applicable to the present case. The said serial number is extracted below: (xiv) Animal feed and fish feed containing milk and milk products of bovine, ovine, caprine, meat and meat p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, it is clarified that restricted items (unless otherwise specifically mentioned) are allowed to be imported for export production under Advance Authorisation Scheme, wherein inputs always remain under actual user condition even after completion of export obligation. This issues with the approval of Competent Authority. (Tapan Mazumdar) Jr. Director General of Foreign Trade Tele: 011-2306 1050 E-mail: [email protected] (Issued from File No. 01/94/180/AA-Restricted items/AM 09/PC-4 The above is also evident from a bare comparison of para 4.1.13 of Foreign Trade Policy 2009-2004, as it stood prior to 4.6.2012 and corresponding para as it stood after that date. Said para 4.1.13 as it stood prior to 5.6.2012 read as: Prohibited Items 4.1.13 Prohibited items of imports mentioned in ITC(HS) shall not be imported Advance Authorization / DFIA. Para 4.1.13 as it stood from 5.6.2012 reads thus 13. Importability/Exportability of items that are Prohibited/Restricted/STE (a) No export or import of an item shall be allowed under Advance Authorization/DFIA if the item is prohibited for exports or imports respectively. (d) Import of restricted items shall be allowed under Advance Authorization/DF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order, Ld. Commissioner has held that goods cleared under the provisional assessment bond are liable to be confiscated with the option to redeem the goods under Section 125 on payment of redemption fine. This conclusion of Ld. Commissioner is contrary to law declared by Larger Bench in the above case. Hence, the fine of Rs. 10 Lakhs imposed on goods assessed provisionally under Section 18 is invalid. P) As per the Impugned Order, in the present case all the ingredients mentioned in Section 28(4) of the Customs Act, 1962 are attracted and invokable in the present case. The order alleges collusion as well as willful mis-statement as well as suppression of facts simultaneously at the same time, which is incorrect and baseless hence, the impugned order is liable to be set aside. Apart from bare allegations, there is absolutely nothing on record to establish that the Appellant has colluded or resorted to any willful misstatement or resorted to suppression of facts, as full and complete facts were already in the knowledge of the Department. It is undisputed that the Department had drawn samples from bill of entry No. 7867111 dated 6.9.2012 and got it tested from CIFT and CIFT v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 11 TMI 960 CESTAT Kolkata , it has been held as under: as under: 19. In other words, the Bill of Entry filed under Section 46 contains certain factual information such as the details of importer, IEC, exporter, Country of origin, Rotation number, line number, nature of the goods imported, quantity, etc. which have to be correctly declared by the importer. The officer cannot change the declaration by the importer but he may find that the declaration was wrong (say, 1000 pieces were imported and not 800 as declared) and reassess duty accordingly and also take action for mis-declaration. The Bill of Entry also contains certain information such as Customs tariff heading and exemption notifications, which reflect the importer's self-assessment which, unlike declarations, can be changed by the officer. Wrong self-assessment is not the same as wrong declarations. Under Section 111(m), goods which do not correspond to the entry made under section 46 are liable for confiscation and not goods which are wrongly self-assessed to duty although self-assessment under section 17 is also done through the process of filing the Bill of Entry. Any column in the Bill of Entry which can be modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. While self-assessment may be modified by through re-assessment by the proper officer, both self-assessment and the assessment by the proper officer can be assailed in an appeal before the Commissioner (Appeals) or reviewed through an SCN under section 28. Therefore, any wrong classification or claim of an ineligible notification or wrong self-assessment of duty by an importer will not amount to mis-statement or suppression. Thus, the extended period of limitation is not invokable in the present case. Section 28(4) of the Customs Act, 1962 was amended and the normal period of limitation was enhanced to a period of 2 years from erstwhile 1 year on 14.05.2016. It is a settled position of law that once the demand is barred by limitation, it cannot be subsequently revived by amendment as observed by the Tribunal in the case of Aveco Technologies Private Limited vs. CC Hyderabad: 2018 (362) ELT 624 (Tr. Hyderabad) and maintained by the Hon ble Supreme Court in 2018 (362) ELT A164 (S.C) which reads as under: 15. We also find that a part of the demand raised in the Notice is barred by limitation. The Commissioner has held in the order that the larger period of limitation available un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 (i.e. two years prior to SCN dated 21.11.2016) to 14.5.2015 is also barred by limitation. Further, the Department has placed reliance on email correspondence between the official of the Company and the Indonesian supplier, there is nothing in the email correspondence which even remotely establishes any lack of bona fide on the part of Appellant. The Appellant was in communication with a new supplier from a new country in Indonesia. Initially the foreign supplier proposed to sell dried/raw fish scales. However, because of commercial needs, the Appellant emphasized on supply of processed (demineralized / decalcified) fish scale. Hence, to avoid confusion and mix up, Appellant particularized goods needed by them namely as decalcified fish scale, as opposed merely dried fish scale. Indian Customs Tariff was aligned with HS Code only upto six-digit level. India has implemented 8 digit the sub-classification Indonesia does not have 8-digit tariff. Thus, there is non-alignment of CTH at 8-digit level, between Indonesia Customs Tariff and Indian Customs Tariff. Tariff Item 35040099 figured in Indian Customs Tariff, Indonesia had only sub-headings Tariff 35040000. Communications exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis, results in the final product known as collagen peptide. The final product yield is approximately 55% of the raw material used and the remaining comprises moisture, ash, insoluble proteins, sulphate ions, foreign matter including impurities as averred by the Assistant General Manager of the appellant. The physical properties of collagen peptide are totally different from demineralised fish scales . iii) In The form in which they imported the impugned goods cannot be regarded as other protein substances and their derivatives , in particular, protein isolates, which are extracted from vegetable or animal sources. Demineralised fish scales a source of protein and are not protein substances by themselves. They cannot be directly used but had to be hydrolysed before they become a protein substance. Hence, in terms of chapter notes, and tariff descriptions and explanatory notes, impugned goods do not merit classification under heading 3504 as claimed by the appellant. The products covered under heading 3504 are final products and they are extracted or derived from a protein source. Impugned goods do not satisfy this criterion. The analogy of keratins is not relevant; further, classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 3504 was forbidden. In all the documents submitted with the bill of entry such as invoice, purchase order, FTA certificate, health certificate, the description shown was decalcified fish scale for collagen (fish protein). No nowhere it is stated that impugned goods were fish protein, even then the appellant described the goods to be fish protein in the bills of entry to match the description and the advance authorisation issued by the JDGFT, Kakkand and to claim classification under heading 3504 for customs purposes. ix) The goods imported clearly were demineralised/decalcified fish scales and they are sources of protein called collagen and are not usable as protein as such. They had to be necessarily processed further to extract protein that is collagen peptide. In form and smell they were nothing but for scales. Hence the correct classification of the impugned goods is under chapter heading 05119190 and not under 35040099. x) Based on the General Rules of Interpretation and Explanatory notes the goods are rightly classifiable only under chapter heading 0511 because the goods are in the form of fish scales and by no stretch of imagination they can be regarded as protein su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the schedule annexed thereto. Further vide notification S.O. 2666 (E) dated 16/10/2014 livestock has been defined to include fish products. The appellant did not obtain such sanitary permits for their import of impugned goods. The appellant was fully aware that the goods imported by them were not fish protein. They advised their suppliers not to indicate in their documents the HS code of the product but in the bills of entry the description of the goods to be fish protein and its classification to be under heading 3504 for customs purposes and for availing the benefit of advance authorisation scheme. There was a deliberate default on the part of the appellant with the deliberate intention to avail the benefit of the benefit of the above scheme. 4. Heard both sides and perused the records. The issues to be decided are: (i) Whether the imported item is fish protein as declared by the appellant or is it processed/demineralised fish scales at as per the test reports. (ii) Whether the product is to be classified under chapter heading 0511 9190 based on the description is demineralised fish scales allowed to be classified under chapter heading 3504 0099 as claimed by the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of protein. It is also admitted that after certain processes the protein is extracted and then exported. Therefore, the question arises whether the item is classifiable as demineralised fish scale under chapter heading 0511 or as protein under CTH 3504. 7. Now let s examine the two contesting headings along with the relevant General notes, Chapter notes and the Explanatory notes along with the Rule of Interpretation of Customs Tariff. The Rules of Interpretation for classification in a nutshell are as follows: Rule 1. The titles of Sections, Chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions: xxx Rule 3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. Rule 4. Goods which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir derivatives, not elsewhere specified or included; hide powder, whether or not chromed. This heading covers: (A) Peptones and their derivatives. (B) Other protein substances and their derivatives, not covered by a more specific heading in the Nomenclature, including in particular: (C) Hide powder, whether or not chromed. From the above Chapter notes and the HSN explanatory notes it is very clear that fish nails and fish waste are being classified under chapter 5 while Chapter 35 in fact is the classification for peptones and their derivatives which is the final product manufactured by the appellant using the fish scales imported by them as their main source of protein. The fact that the demineralized fish scale consists of protein does not itself make the product protein substance to be classified under chapter 35. The fish waste which is rich source of protein is specifically covered under CTH 0511 (highlighted) and the explanatory notes also clearly mentions that this CTH includes fish waste. It is an admitted fact that the appellant manufactured peptide by using the fish protein contained in the demineralized fish scales imported by them, just because it contains protein which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term ice-cream under Heading 21.05 is broad enough to include soft serve within its import. On the basis of the authorities cited on behalf of the assessee, it cannot be said that ice-cream ought to contain more than 10% milk fat content and must be served only frozen and hard. Besides, even if we were to assume for the sake of argument that there is one standard scientific definition of ice-cream that distinguishes it from other products like soft serve , we do not see why such a definition must be resorted to in construing excise statutes. Fiscal statutes are framed at a point of time and meant to apply for significant periods of time thereafter; they cannot be expected to keep up with nuances and niceties of the gastronomical world. The terms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. It is for precisely this reason that this Court has repeatedly applied the common parlance test every time parties have attempted to differentiate their products on the basis of subtle and finer characteristics; it has tried understanding a good in the way in which it is understood in common parlance. 9. In the present case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of clearance for debit; (ii) that the said authorisation bears,- (a) the name and address of the importer and the supporting manufacturer in cases where the authorisation has been issued to a merchant exporter; and (b) the shipping bill number(s) and date(s) and description, quantity and value of exports of the resultant product in cases where import takes place after fulfilment of export obligation; or (c) the description and other specifications where applicable of the imported materials and the description, quantity and value of exports of the resultant product in cases where import takes place before fulfilment of export obligation; (iii) that the materials imported correspond to the description and other specifications where applicable mentioned in the authorisation and the value and quantity thereof are within the limits specified in the said authorisation; (iv) that in respect of imports made before the discharge of export obligation, the importer at the time of clearance of the imported materials executes a bond with such surety or security and in such form and for such sum as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horization (both in value and quantity terms) is discharged within the period specified in the said authorization or within such extended period as may be granted by the Regional Authority by exporting resultant products, manufactured in India which are specified in the said authorization and in respect of which facility under rule 18 (rebate of duty paid on materials used in the manufacture of resultant product) or sub-rule (2) of rule 19 of the Central Excise Rules, 2002 has not been availed : Provided that an Advance Intermediate authorization holder shall discharge export obligation by supplying the resultant products to exporter in terms of paragraph 4.1.3 (ii) of the Foreign Trade Policy; (ix) that the importer produces evidence of discharge of export obligation to the satisfaction of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, within a period of sixty days of the expiry of period allowed for fulfilment of export obligation, or within such extended period as the said Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, may allow; (x) that the said authorisation shall not be transferred and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Foreign Trade Policy 2009-2014, published by the Government of India in the Ministry of Commerce and Industry vide notification No. 1/2009-2014, dated the 27th August 2009 as amended from time to time; (iii) Licensing Authority or Regional Authority means the Director General of Foreign Trade appointed under section 6 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992) or an officer authorized by him to grant a licence under the said Act; (iv) Manufacture has the same meaning as assigned to it in paragraph 9.37 of the Foreign Trade Policy; (v) Materials means- (a) raw materials, components, intermediates, consumables, catalysts and parts which are required for manufacture of resultant product; (b) mandatory spares within a value limit of ten per cent. of the value of the licence which are required to be exported along with the resultant product; (c) fuel required for manufacture of resultant product; (d) packaging materials required for packing of resultant product; (vi) Specified Chartered Accountant means a statutory auditor or a Chartered Accountant who certifies the importer s financial records under the Companies Act, 1956 (1 of 1956) or the Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is very clear that the imported goods were tested and certified that it was a fish protein and based on this test reports the goods were cleared under chapter heading 3504 as claimed by the appellant. The Commissioner s observations that the samples were not tested for the constituent material and were physically not examined is not a valid observation in as much as if revenue was not satisfied with the test report there was a provision for retest and they could have got tested as per their requirements and having not done and having accepted the test report the question of finding fault with the method of testing appears to be irrelevant as far as the classification is concerned. The earlier test reports cannot be brushed aside for the reasons stated by the Commissioner in the impugned order. Therefore, the question of disallowing the benefit of advance authorisation scheme during this period is not sustainable in as much as the goods were declared as fish protein and item was cleared as fish protein as per the advance authorisation scheme. Moreover, these imported goods were actually used in the manufacture of export goods and exported as per the notification 96/2009 is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s conclusions in arriving at the said conclusion. The normal period of limitation for issuing a show cause notice under Section 28 is one year from the due date and unless there is suppression of facts or misstatement, the extended period of limitation will not be attracted. In the present case, the show cause notice, dated 18-3-2003 in respect of the earlier consignments, admittedly, is beyond one year. Such notice beyond the normal period of limitation could have been issued only if there have been suppression of facts. If, from the show cause notice, dated 16-4-2002 and the report of the EPTRI and NMDC in respect of the samples from the consignments dated 24-12-2001 and 24-1-2002, the Revenue was already in the know of the relevant facts, it is difficult to understand as to how the Revenue could have the benefit of anything but the normal period of limitation to issue the show cause notices dated 18-3-2003. The order of the learned Tribunal insofar as the six appeals are concerned, holding show cause notices issued therein to be time barred and interfering with the adjudication orders dated 29-3-2004 and 23-9-2004, therefore, must have the approval of this Court. 15. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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