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TMI Blog2024 (6) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be prefer to providing more general description. It is found that sub heading 2835 2610 provides absolute specific description whereas the heading 2309 9090 provides a general description. This view is also supported by observation of Hon ble Apex Court in case of COMMNR. OF CENTRAL EXCISE, MUMBAI VERSUS M/S. PFIZER LTD. [ 2015 (12) TMI 1150 - SUPREME COURT] wherein Hon ble Court has observed 'in the present case, imported goods Virginiamycin is a well defined chemical of 100% purity with anti bacterial properties included specifically under Chapter 29 by virtue of Chapter Note 1(a).' - The ratio of above decision is equally applicable to instant case. Deliberate attempt to misclassify or not - HELD THAT:- In the instant case appellants were earlier classifying the goods under chapter heading 2835. The heading is very specific leaving no room for doubt. The appellants made a claim that fluorine left in biofos MCP also known as deflorinated phosphate is intentional. The said claim has not been substantiated by any literature or by product safety data sheet. In these circumstances, there was a deliberate attempt to misclassify the goods to avail a lower duty rate. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se under tariff heading 2835.26. The impugned order also reject reliance on the CBEC circular 47/1/97 EX dated 03.03.1997 on the ground that the said classification does not relate to mono calcium phosphate but to di calcium phosphate and the fact that the said circular had been withdrawn by circular No. 675/66/2002-EX dated 05.11.2002. 5. Learned Counsel pointed out that the only reason for the reclassification of the product under heading 2835 by revenue is that the appellant had earlier sought classification under the said heading. He argued that the revenue has not produced any evidence in the form of test report etc as to why product is classifiable under heading 2835. He argued that the appellant had earlier classified goods MCP ( Mono Calcium Phosphate) under heading 2835 2610 as the product Mono Calcium Phosphate is specifically covered in the said sub heading. He argued that while they have classified product under chapter 2835 2610, the product does not meet the requirement of chapter 28 and the same needs to be classified under chapter 23. He argued that as per the chapter note 1 to chapter 28 the headings of chapter 28 applied only to separate chemical elements and sepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in case of tetra Gone Kanal Pvt Ltd 2000 (138) ELT 414 Tribunal larger bench to assert that note of heading 23.02 of Central Excise Tariff Act 1985 has to be read to extend scope of heading so as to include preparation not confined only to those obtained by processing animal or vegetable material but to preparation containing synthetic material also. 10. Learned Counsel also relied on the CBEC circular 23.06.1996 to assert that the ordinary and common appreciation of the product in the trade has to be examined while classified the goods as animal feed. Learned Counsel further argued that there was no suppression what so ever. The product was described correctly in the bill of entry. He argued that matter of classification is matter of interpretation and on that count no charge of specification of suppression can be revoked. He argued that in this circumstances invocation of section 111(M) in the Custom Act is totally unwarranted. He argued that no penalty can be imposed in this circumstances as the actions of the importer were purely bona fide. 11. Learned AR relied on the impugned order he also relied on the decision of Hon ble Apex Court in the case of Fizer Limited 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive elements or of isotopes NOTES: 1. Except where the context otherwise requires, the headings of this Chapter apply only to: (a) separate chemical elements and separate chemically defined compounds, whether or not containing impurities; (b) the products mentioned in (a) above dissolved in water, (c) the products mentioned in (a) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use: (d) the products mentioned in (a), (b) or (c) above with an added stabilizer (including an anti-caking agent) necessary for their preservation or transport: (e) the products mentioned in (a), (b), (c) or (d) above with an added anti-dusting agent or a colouring substance added to facilitate their identification or for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than for general use. On the one side the revenue is treating presence of fluorine as mere impurity, the appellant is suggesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Phosphate Monohydrate. This product is specifically covered under sub heading 2835 2610. The interpreted rules to the custom tariff prescribed as follows :- Statutory Provisions Customs Tariff Act, 1975 'THE FIRST SCHEDULE-IMPORT TARIFF (See section 2) General rules for the interpretation of this Schedule Classification of goods in this Schedule shall be governed by the following principles: 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: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) subject to the provisions of (a) above, packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use. 6. For legal purposes, the classification of goods in the sub-headings of a heading shall be determined according to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. 17. In terms of Rule 3(a) the heading which gives most specific description shall be prefer to providing more general description. We find that sub heading 2835 2610 provides absolute specific description whereas the heading 2309 9090 provides a general description. 18. This view is also supported by observation of Hon ble Apex Court in case of PFIZER LTD 2015(326)ELT 431 (SC) wherein Hon ble Court has observed as follows :- The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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