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TMI Blog2025 (3) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) who vide Order in Appeal C. Cus. No. 491/2015 dated 29.5.2015 confirmed the order of the lower authority. Aggrieved by the impugned order, the appellant is before the Tribunal. 2. We have heard Shri B.Venugopal, learned counsel for the appellant and Shri Anoop Singh, Ld. Authorized Representative for the respondent-department. 3.1 The learned counsel Shri B.Venugopal submitted that the issue of classification of the impugned imported product viz., Squid Liver Powder' has been decided by this Hon'ble Tribunal in their own case vide Final Order Nos. 40465 to 40468/2023 dated 22.06.2023. The said Final Order (No. 40465/2023) has been challenged by the Appellant before the Hon'ble High Court of Madras in CMA No. 2639/2023 u/s 130 of the Customs Act, 1962 on various legal grounds and is currently pending before the Hon'ble High Court. Under the circumstances, he prayed to keep the proceedings under the present appeal pending, until the CMA No. 2639/2023 is heard and disposed of the Hon'ble High Court, in the interest of justice. He further prayed that if the matter was being decided on merits they may be allowed to plead a pure questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the parties to the dispute. CHAPTER 23 Residues and waste from the food industries; prepared animal fodder NOTE : Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing. Sub-heading Note: For the purposes of sub-heading 2306 41, the expression "low erucic acid rape or colza seeds" means seeds as defined in sub-heading Note 1 to Chapter 12. Tariff Item Description of the goods Unit Rate of Duty (1) (2) (3) (4) (5) 2301 Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves 2301 10 - Flours, meals and pellets, of meat or meat offal; greaves 2301 1010 --- Meat meals and pellets (including tankage) Kg. 30% 2301 10 90 --- Other (including greaves) Kg. 30% 2301 20 - Flours, meals and pellets, of fish or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading, 'squid liver powder' being a preparation used for aqua feed and all type diet for animals, is rightly classifiable under CTH 2309. 7.3 We find that CTH 230120 preferred by the appellants covers 'flours, meals and pellets, of fish or of crustaceans, molluscs or other aquatic invertebrates'. The heading does not cover products containing ingredients of plant origin. Since 'squid liver powder' contains a mix of ingredients both of molluscs and plant origin, from a plain reading of the heading, squid liver powder does not fall under the heading. 8. Both the appellants have referred to the HSN to further explain their stand. Hence the relevant portion of the HSN is extracted below. Preparations of a kind used in animal feeding. (HSN) Chapter 23 Residues and Waste from the food industries; prepared animal fodder 23.01 - Flours, meals and pellets of meat or meal offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves. 2301.10 Flours, meals and pellets, of meat or meat offal; greaves 2301.20 Flours, meals and pellets, of fish or of crustaceans, molluscs or other acquatic invertebrates This heading covers:- (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparations is that they contain products from each of the three groups of nutrients described below : (1) " Energy " nutrients, consisting of high-carbohydrate (high-calorie) substances such as starch, sugar, cellulose, and fats, which are " burned up " by the animal organism to produce the energy necessary for life and to attain the breeders' aims. Examples of such substances include cereals, half-sugar mangolds, tallow, straw. IV-2309-2 23.09 (2) " Body-building " protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not " burned up " by the animal organism but contribute to the formation of animal tissues and of the various animal products (milk, eggs, etc.). They consist mainly of proteins or minerals. Examples of the protein-rich substances used for this purpose are seeds of leguminous vegetables, brewing dregs, oil-cake, dairy by-products. The minerals serve mainly for building up bones and, in the case of poultry, making egg-shells. The most commonly used contain calcium, phosphorus, chlorine, sodium, potassium, iron, iodine, etc. (3) " Function " nutrients. These are substances which promote the assimilation of carbohydrates, proteins and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paring, in particular, " premixes ". . . . . . . . 8.1 The appellants state that CTH 2309 covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed : - (1) to provide the animal with a rational and balanced daily diet (complete feed); (2) to achieve a suitable daily diet by supplementing the basic farm- produced feed with organic or inorganic substances (supplementary feed); or (3) for use in making complete or supplementary feeds. That in order to fall under the third category the goods should be a 'pre- mix' that are added to complete feed or supplementary feed for specific purposes such as improving digestion, preservation or as carrier. We find from the above HSN notes that the heading 230990 covers preparations for used in making the complete feed or supplementary feed and need not be an end product in themselves. As per the notes 'this heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed for use in making complete or supplementary feeds'. Further as stated by the appellants squid liver powder contains certain proteins, peptides and amino acids ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 fail. The issue of essential character of the subject matter in question may be resorted to only if classification of a product under Rule 1 is impossible. We have earlier discussed that the squid liver powder was classifiable under CTH 2309 as 'preparations of a kind used in animal feeding' both by a plain reading of the Customs Tariff and with reference to the HSN. Hence the need for applying Rule 3(b) of GRI does not arise. 9.1 The appellant M/s Godrej Agrovet Ltd. have also stated that there cannot be a change in classification or assessment practice when the impugned goods were earlier being classified under CTH 2301 in their case. On the contrary the appellant M/s Avanti Feeds Ltd. were of the opinion that the principles of res judicata do not apply to tax matters and that they cannot be prevented from canvassing the correct classification and that assessment under each Bill of Entry is a separate appealable order and cannot be taken as a precedent. We find that earlier assessment practice cannot be a substantive bar on rectifying a wrong classification. Such a reason cannot be used as a reason to continue a wrong classification even after it has been noticed by either of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills P. Ltd. Vs. CCE, Chandigarh - 2001 (134) ELT 262 (Tri. Del.) As discussed in para 9.1 above, we agree with the legal position that equality / precedent cannot be attributed in cases where wrong orders have been issued. Wrong decisions taken earlier cannot be binding precedents as there is no estoppel against law. Further, we have also not relied upon the test report which has been disputed by the appellant as stated in our discussion above. 11. The learned counsel appearing for M/s. Godrej Agrovet Ltd. relied upon Boards Circular no 80/54/ 2018-GST dated 31/12/2018 regarding clarifications on GST rates and classification of goods, to state that HS Code 2309 would cover only such products which in the form supplied are capable of specific use as food supplements for animals and are not capable of any general use. Boards clarifications are not binding on Tribunals. These clarifications are given in the context of another law that is GST and are distinguished. They have further referred to the US Customs ruling No NY 186510 pertaining to 'Instant bait' with totally different ingredients. The said bait is dissimilar to the impugned product and bears no comparison and cannot e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. As regards the fresh point of law mentioned at (D) above, we admit and examine the same. It is the appellants contention that the essential issue in the present Appeal is a classification dispute with respect to the item under import. In such view of the matter, the General Rules of Interpretation of Tariff would have to be factored and taken into account for a correct decision. This cannot be done only with reference to Rule 1. Rule 3 should also be applied. As the goods are a mixture, it should be classified only by applying essential character as mandated under Rule 3(b). As per the Rules, classification of a product is required to be done based upon the major constituent of the product or which gives it the essential character. In this regard the Ld. Counsel referred to and relied on the following decisions: UOI vs. Garware Nylons Ltd - 1996 (87) ELT 12 (S.C.) UOI vs. Century Spg. & Mfg Co. Ltd. 1985 (21) ELT 668 (Bom.) Atul Glass Industries Ltd. vs. CCE 1986 (25) ELT 473 (S.C.) 7.1 We find that this issue and judgments have been taken note of and the matter answered at para 9 of Final Order Nos. 40465 to 40468/2023, dated: 22.06.2023, reproduced above and does not meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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