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TMI Blog2024 (10) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The call to the adjudicating authority was not to adjudge between the two perceptions but to obtain an acceptable, unbiased report. Such a report, if enlightening upon the samples being surface-active agent , would have served the purpose and the doubts raised by the noticee are not, in the light of demonstrated interpretation, to be disregarded casually. A validated test would have served to decide upon the correctness of the classification and also to enlighten others faced with such quandary. The exactitude and rigour of the test is in doubt and, with the test reports furnished by the noticee not having been considered except peripherally, it would be appropriate to send for a further test. This is inescapable as the Hon ble Supreme Court, in Hindustan Ferodo Ltd v. Collector of Central Excise [ 1996 (12) TMI 49 - SUPREME COURT ], has held that ' It is not in dispute before us as it cannot be, that onus of establishing that the said rings fell within Item No. 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headings of each chapter. And yet, here is a controversy which straddles not just two headings but, unimaginably, two chapters. Apparently and all too unusually, not only has the description of the goods in question been altered but the fitment between Amine function compounds as description of heading 2921 of First Schedule to Customs Tariff Act, 1975 and Organic surface-active agents as relevant description of heading 3402 of First Schedule to Customs Tariff Act, 1975, which, additionally, has preparations that the impugned goods, admittedly, were not, had been determined by Commissioner of Customs (NS-I), Jawaharlal Nehru Customs House (JNCH), Nhava Sheva with fiscal and penal consequences in the impugned order [order-in-original no. 47/2023-24/Commr/NS-I/CAC/JNCH dated 22nd May 2023] . 2. It was also not lost on us that neither the original description as declared by the importer nor that transposed by the adjudicating authority are enumerated as tariff lines to beg the question of proximate cause for such divergent fitment by both. But the manner of transposing, by the statutory scheme of classification as well judicial determination of primary responsibility of notice, of tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where we encounter an impediment that not any of the submissions of both sides, steeped in technology and technicalities, can assist us in overcoming. That has all to do with structuring and design of the proposed classification which has everything to do with its adaptability as description of the impugned goods and which appears to have slipped by the adjudicating authority. As referred supra, we have heard Learned Counsel for appellants and Learned Authorized Representative at length. It is inevitable that, in submissions on a classification dispute, the technical aspects are very much at a premium but that pre-eminence was never intended to accorded in adjudging aptness. The tariff is intended for the trade and transactional nomenclature must have weighed with designers of the scheme. The tariff is intended for customs officers at the frontiers to undertake assessment and, notwithstanding their years of experience, it should hardly be expected of them to attend to levy of duty as a scientist or academician would to product analysis. Most importantly, and foremost, it is the foundational framework of a nation s tax policy; had the technical nuances of a product weighed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responding to the proposed tariff line in the First Schedule to Customs Tariff Act, 1975, in conjunction with the relevant notes in the proposed chapter of the First Schedule to Customs Tariff Act, 1975, the impugned order has veered from the prescribed path to first discard the declared classification. 6. To start with, the impugned order has presumed that disqualification as separate chemically defined organic compound is the first step to moving a product out of the claimed chapter in the First Schedule to Customs Tariff Act, 1975. For this presumption, reliance has been placed on note 1 of chapter 29 of First Schedule to Customs Tariff Act, 1975. It appears to have escaped the eye of the adjudicating authority that use is not a criteria for classification except when the intent is, contrarily, set out in the First Schedule to Customs Tariff Act, 1975 and it is to enable that prioritization, based on use , that this injunction precluding use defined products from taking recourse to generic description owing to tax arbitrage is asserted. There is a larger purpose in the notes of sections and chapters that include or exclude; essentially, they guide tax policy formulation onto cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 3401 corresponding to heading 3402 of First Schedule to Customs Tariff Act, 1975 and, in particular at the sub-heading level as anionic , cationic , non-ionic and other , is intended for organic surface-active as a sub-classification. It is abundantly clear from note 3 of chapter 34 of First Schedule to Customs Tariff Act, 1975 that there are physical characteristics of surface active agent that may be ascertained. The ascertainment was questioned for bona fides by the noticee, including the conducting of the prescribed tests. The same taint was attached by the adjudicating authority to the reports submitted during that proceedings. We cannot know for certain that the tests were, acceptably, validated. It was merely the advantages of one over the other that was cited before the adjudicating authority. The call to the adjudicating authority was not to adjudge between the two perceptions but to obtain an acceptable, unbiased report. Such a report, if enlightening upon the samples being surface-active agent , would have served the purpose and the doubts raised by the noticee are not, in the light of demonstrated interpretation, to be disregarded casually. A validated test would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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