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TMI Blog2024 (12) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... es or otherwise alters the physiological processes in a plant. The view to the contrary taken by the Division Bench in the referral order is not correct; and (ii) Siapton 10L and Isabion merit classification as fertilizers under ETI 3101 00 99 and not as a plant growth regulator under ETI 3808 93 40.' Conclusion - The goods in question namely Siapton 10L and Isabion are correctly classifiable under Central Excise Tariff Item No. 31010099 and the same is not falling under Central Excise Tariff Item No. 38089340. The impugned orders are set aside - Appeals are allowed - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Ashok Dhingra Ms. Sonia Gupta, Advocate for the Appellant Shir Mihir G Rayka, Additional Commissioner (AR) for the Respondent ORDER The issue involved in the present case is that whether the final product namely Siapton 10L and Isabion manufactured by the appellant is classifiable as fertilizer under Central Excise Tariff Item No. 3101 00 99 of the first schedule of Central Excise Tariff Act, 1985 as declared by the appellant or Plant Growth Regulator falling under Central Excise Tariff Item No. 3808 93 40 as claimed by the Department. 2. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue fairly concedes that the issue involved is identical, i.e. classification of micro nutrients as involved in the matter pending before larger bench of this Tribunal in the case of Isagro (India) Agrochemicals Pvt. Ltd. in Appeal no. E/10081/2013 and E/11791/2014. 3. Accordingly, we place this matter before the Hon ble President to consider for tagging these appeals with the appeals pending before the larger bench in the case of Isagro (India) Agrochemicals Pvt. Ltd. Miscellaneous Application is disposed of in the above terms. (emphasis supplied) 10. To examine the aforesaid issue that has been referred to the Larger Bench, it would be necessary to examine the two products. SIAPTON 10L 11. P.I. Industries claims to be importing Siapton 10L since May 2003 by describing it as a mixture of amino acids, peptones and peptides and classifying it as a fertilizer under Chapter Heading 3101 of the Customs Tariff for the purpose of basic customs duty. After bringing the said product in the factory, it carried out activity of re-packing from bulk pack to small packs and also carried out labeling activity. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phasis supplied) 14. The Commissioner also examined the technical description of Siapton 10L and concluded that bio-stimulant are neither fertilizer nor plant growth promoter but are plant growth regulators. The findings are as follows: 18.6 From the discussions in foregoing para, it can be safely concluded that the Bio-stimulants are neither fertilizer/plant growth promoters, nutrients nor pesticides; that they are applied in small quantities; that they influence various metabolic/physiological processes in plants; that they have been equated with Plant Biochemical Regulators and Plant Growth Regulators . I find the PGR can either - inhibit the plant growth Or - promote the plant growth. Or - otherwise alter physiological processes in plants. Thus the submission of the assessee that PGR always inhibits the growth of plant and causes phytotoxicity is on wrong footing. ***** 18.8 In the present case as discussed in foregoing paras, it is clear from the product literature produced by assessee and also from above referred various field studies that SIAPTON 10L a) It is a Biostimulant. b) It constituents mainly organic fraction. c) It is used directly through leaves i.e. foliar applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appellants has Amino-acids and Amino-acids alone. 54% of the product is pure amino-acids whereas the remaining ingredients are what are called peptides and micronutrients. Peptides are nothing else but short chain amino acids. In other words, almost 86% of the product is amino-acids of one form or the other ***** 16. P.I. Industries has placed the test report dated 01.03.2011 submitted by Doctors Analytical Laboratories Pvt. Ltd., Pune. It reports that Siapton 10L is not a plant growth regulator. The report is reproduced below: Doctors Analytical Laboratories Pvt. Ltd., Pune TEST REPORT Date: 01/Mar./2011 Customer Name Address Isagro Asia Agrochemicals Pvt. Ltd., Plot No. 640, GIDC, Panoli-394116, Dist. Bharuch, Gujarat, India Supplier/Exporter Name Address Isagro Asia Agrochemicals Pvt. Ltd., Plot No. 640, GIDC, Panoli-394116, Dist. Bharuch, Gujarat, India Lab Code And Date Of Sample Received 711010088 05/Jan./2011 Sample Name SIAPTON 10L (B.No. 15A-372 mfg.20.12.2010 Exp. 19.12.2012) Condition of Sample Packed in Plastic Bottle Test Performance Date 10/Jan./2011 To 01/Mar./2011 Sr. No. Name of Test Result Method of Analysis Equipment Used Plant Growth Regulators 1 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not control any disease of any kind. As far as a PGR action is concerned, there is no doubt that the actions of SIAPTON 10L (and of the amino acids and peptides from animal by-product) are various; the product acts on improving growth and overcoming stress situations. It improves for example nitrogen assimilation. NOTABLY, THESE ACTIONS ARE TYPICAL OF FERTILISERS; IN NO WAY SIAPTON 10L CAN BE INCLUDED IN THE GROUP OF PRODUCTS UNIVERSALLY RECOGNISED AS PLANT GROWTH REGULATOR In fact, a PGR is defined as an organic compound, either natural or synthetic, that modifies or controls one or more specific physiological processes within a plant . A further definition is : plant growth regulators (also known as growth regulators or plant naturally produced by plants, substances that control normal plant functions, such as root growth, used to alter the growth of a plant or plant part. Hormones are substances naturally produced by plants, substance that control normal plant functions, such as root growth, fruit set and drop, growth and other development processes. SIAPTON 10L does not modify, or control or alter any physiological process; it just provides Nitrogen (in an organic form for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duty payment details for ISABION for the period from 2009-10, 2010- 11 2011-12 are shown in the Annexure- A attached to this show cause notice. (emphasis supplied) 21. The relevant portion of the order dated 04.03.2013 passed by the Commissioner is reproduced below: 32.4. I have gone through the description of Isabion , as discussed in forgoing paras and the facts that emerged are - It mainly constituent organic fraction. - It is used directly through leaves. - It is used as organic bio-stimulant of roots, leaves, flowers and fruits on every kind of crops and recommended during the active growth phases of the production cycle i.e. they alter the physiology of various parts of plants. - It helps in mitigating the damage done by hail, phyto-toxicity, parasites and diseases, drought, etc. I find that Isabion being a Biostimulant cannot be a Fertilizer/Plant growth Promoter/Nutrient by virtue of my findings in regards to Biostimulants in foregoing paras and also on account that fertilizers are used in soil, while Isabion is used also through foliar application. I find that Biostimulant, Plant Biochemical Regulators and Plant Growth Regulators are treated on equal footing and Isabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds, Cotton, SugarBeet, Flowers and Ornamental crops. ISABION is recommended during the active growth phases of the production cycle, in nurseries and in young plantations. ISABION helps the crops in mitigating the damage done by hail, phyto- toxicity, parasites and diseases, drought, etc. Dosage rates and use: ISABION has a flexibility of usages as foliar spray, soil application or fertigation. The number of applications timing depends on the crop, however application at the time of transplantation, flowering, fruit-setting, ripening are the most important. Foliar spray: 200-300 ml/100 L of water (For more details on application refer attached Isabion Booklet). Chemical Composition: Organic fraction derived from amino acids, peptides mixture 62.5% w/w Inorganic faction and aqua 37.5% w/w Total 100% w/w 25. During the audit, a sample of Isabion was drawn and forwarded to the Chemical Examiner, Central Excise Customs Laboratory at Vadodara. As per the said report, Isabion contains nitrogen, potassium and phosphorus. Syngenta also obtained analytical test report on chemical analysis of Isabion and the said report dated 10.07.2018 concludes that Isabion contains 58% free amino acid w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -sprouting products and plant-growth regulators 3808 93 3808 93 10 --- Chloromethyl phenozy acetic acid (M.C.P.A.) Kg. 8% 3808 93 20 --- 2:4 Dichloro phenozy acetic acid and its Esters Kg. 8% 3808 93 30 --- Gibberellic acid Kg. 8% 3808 93 40 --- Plant growth regulators Kg. 8% 30. It would be seen that the description of goods under ETH 3101 is animal or vegetable fertilizers while the description of goods under ETH 3808 are insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products. Plant growth regulators are described under ETI 3808 93 40. 31. It is in the light of the aforesaid that the submissions that have been advanced by the learned counsel appearing for P.I. Industries and Agro Pack and the learned authorized representative appearing for the department have to be considered. 32. The Division Bench, while referring the matter to the Larger Bench, noticed that the decision of the Tribunal in Northern Minerals would not help the appellant for the reason that in that case the product was applied to soil while in the appeals that were being heard by the Division Bench the product was directly spraye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d through drip irrigation, and liquid fertilisers containing all three major nutrients are normally used. 36. When plant nutrients are applied by foliar application, smaller quantities of fertilizer materials are required when compared to application through the soil. Upon foliar application of the macronutrient fertilizer, the nutrients enter the leaves through the stomata, correct the disorders, and improve the yield and quality of the produce. Urea is generally suitable for foliar application owing to its high solubility, ease, and quick absorption by the plant tissue. 37. It is an undisputed fact that plants absorb nutrients through their roots or foliage. Generally, in situations where soil conditions are not favorable, it is desirable to make foliar applications of the plant nutrients. 38. It is also important to notice that plant growth regulators are also used for soil and foliar applications. The EU Explanatory Note to ETI 3808 93 90 makes it aptly clear that the plant growth regulators can be applied to the whole plant or parts of the plant or to the soil. 39. Thus, the test based on mode of application would not be a correct test. 40. It now needs to be examined whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality of plants by providing essential nutrients. The Ministry of Agriculture also considers bio-stimulants as fertilizer , and hence, requires compliance of the Fertiliser (Inorganic, Organic or Mixed) (Control) Order, 1985. In this connection, it needs to be noted that bio-stimulants , being a fertilizer, was brought under this Control Order by Order dated 23.02.2021 issued by Ministry of Agriculture and Farmers Welfare. The definition of bio-stimulants contained in the aforesaid Order excludes plant growth regulator, which have been stated to be regulated under the Insecticides Act, 1968. It is true that the aforesaid definition of bio-stimulants was included in the Fertilizer Order by Order dated 23.02.2021 of the Ministry, but as the Ministry has clearly expressed that bio-stimulants would exclude plant growth regulators, the definition would certainly provide guidance. 46. Fertilizers and plant growth regulators are both used in agriculture but serve different purposes. Fertilizers are substances added to the soil or plants to provide essential nutrients like nitrogen, phosphorus, and potassium that plants need to grow. They enhance soil fertility and promote plant growth by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provide essential nutrients to plants, aiding in their growth, development, and overall health. They ensure that plants have an adequate supply of nutrients for optimal performance. (ii) Plant growth regulators, on the other hand, influence and control specific physiological processes within plants, such as growth patterns, flowering, fruit development, and response to environmental stimuli. Mode of Action (i) Fertilizers work by supplying nutrients directly to the soil or plants, which are then absorbed by the roots and utilized for various metabolic processes within the plant. (ii) Plant growth regulators function by interacting with plant hormones and signaling pathways, altering gene expression, and ultimately modifying plant growth patterns and responses. Application (i) Fertilizers are applied to ensure a consistent supply of nutrients throughout the growing season. They can be applied before planting, during growth stages, or as a foliar spray. (ii) Plant growth regulators are applied in specific concentrations and at precise timings to elicit desired responses in plants. They are used to manipulate plant growth processes at critical stages of development. Effects (i) Fert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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