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TMI Blog2024 (11) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... igher Education Cess - HELD THAT:- The issue is no long res integra. Hon ble Supreme Court of India held in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT ] that the appellants, operating under area based exemption notification, are not eligible for refund of Education Cess/Secondary and Higher Education Cess. While the original dispute in the matter was the classification of Triacontanol and the dispute was whether the same was a plant growth regulator or a plant growth promotor. It is found that Commissioner (Appeals ) relied upon the decision of Tribunal in the case of BAHAR AGROCHEM FEEDS PVT LTD., VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [ 2011 (2) TMI 600 - CESTAT, MUMBAI ]. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Crop Chemicals India Pvt Ltd, filed 12 refund claims during the period 09/2008 to 09/2011; Department rejected part of the refund claim on account of Education Cess/Secondary and Higher Education Cess and on then issue of classification of one the products namely, Triacontanol, which the appellants classified under Chapter 38 (3808.30/3808.20) as plant growth regulators (PGP); the Original Authority classified the product as plant growth promoter (PGP) on appeals filed by the appellant commissioner (Appeals) vide impugned orders held that the impugned product Triacontanol was neither a plant growth regulator (PGR) nor a plant growth promoter (PGP) but was an insecticide classifiable under CETH 380810, as held by the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arrived at by the Commissioner (Appeals) was not as subject matter before the original authority; it may also be remanded for quantification of the refund amount. He relies on the Final Order No. FO/57954-57970/2013 dated 08.10.2013 passed by the Delhi Bench in the case of M/s Godrej Agrovet Ltd Vs. Commissioner of Central Excise, Jammu. 4. Heard Both side and perused the record of the case. 5. We find that the brief issues involved in the case are as to whether the case requires to be remanded back to the original authority to decide the classification and to requantify the amount of refund accordingly and as to whether the appellants are eligible for the refund of Education Cess/Secondary and Higher Education Cess. Coming to the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wth promoter only promotes plant growth and would not inhibit it. Accordingly, they held that a plant growth promoter cannot be considered as a plant growth regulator. The said conclusion was derived by this Tribunal based on the HSN explanatory notes and also based on the technical literature on the subject, namely, Kirk-Othmer Encyclopedia of Chemical Technology , Plant Physiology by Robert M Devlin Francis H. Witham and J.C. Johnson s Plant Growth Regulators and Herbicide Antagonists - Recent Advances . Based on the technical literature and the HSN explanatory notes, this Tribunal held that plant growth promoter and plant growth regulator are distinct and different and they cannot be classified under the same heading in the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1968 and Rules made there under are applicable not only to Triacontanol 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification of the impugned product can be held to be under CETH 3808.10 as an insecticide. Accordingly, we hold so. We also find that there is not reason to remand the matter back to the original authority for quantification also. The original authority can very well sanction the refund to the appellant as per the classification arrived at, as above. 8. In view of the above, the appeal is partly allowed as per the following terms: (i) The classification of Triacontanol shall be done under CETH 3808.10. (ii) The appellants are not eligible for refund of Education Cess/Secondary and Higher Education Cess. (iii) The original authority shall calculate the amount of refund payable to the appellants in view of (i) and (ii) above and pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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