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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 ..... 90 of the Customs Tariff Act, 1975? - HELD THAT:- The issue decided in the case of M/S. AVANTI FEEDS LIMITED AND M/S. GODREJ AGROVET LIMITED VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , CHENNAI [2023 (6) TMI 960 - CESTAT CHENNAI] where it was held that 'the classification of the 'Squid Liver Powder' has been correctly done under CTH 23099090 and hence the impugned orders are upheld.' As the goods are a mixture, it should be classified only by supplying essential character as mandated under Rule 3(b) or not? - HELD THAT:- 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. When the OIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 law as stated in the decision of the Apex Court in the case of National Thermal Power Co. Ltd., Vs. CIT, 1998 (99) ELT 200 (SC) and their appeal be allowed. 3.2 The Ld. Authorized Representative submitted that since the appeal for the earlier period has already been decided in favour of revenue, the appeal in this case may be dismissed. 4. We have gone through the appeal and have heard both the parties. We find that the appellant has raised the following issues; (A) Request to keep the hearing and decision pending in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 of crustaceans, molluscs or other aquatic invertebrates --- Fish meal, unfit for human consumption 2301 20 11 ---- In powder form Kg 30% 2301 20 19 ---- Other Kg. 30% 2301 20 90 ---- Other Kg. 30% 2309 Preparations of a kind used in animal feeding 2309 10 00 - Dog, or cat food, put up for retail sale Kg. 30% 2309 90 - Other 2309 90 10 --- Compounded ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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) Flours and meals, unfit for human consumption, obtained by processing either the whole animal (including poultry, marine mammals, fish or crustaceans, molluscs or other aquatic invertebrates) or animal products (such as meat or meat offal) other than bones, horns, shells etc. These products (obtained mainly from slaughter houses, floating factories which process fishery products, canning or packing industries, etc.) are usually steam-heated and pressed or treated with a solvent to removal oil and fat. The resultant product is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 minerals. They include vitamins, trace elements and antibiotics. Lack or deficiency of these nutrients usually causes disorders. The above three groups of nutrients meet the full food requirements of animals. The mixing and proportions depend upon the animal production in view. (B) PREPARATIONS FOR SUPPLEMENTING (BALANCING) FARM- PRODUCED FEED (FEED SUPPLEMENTS) . . . . . . . (C) PREPARATIONS FOR USE IN MAKING THE COMPLETE FEEDS OR SUPPLEMENTARY FEEDS DESCRIBED IN (A) AND (B) ABOVE These preparations, known in trade a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in it. They are in line with the HSN description, as being composed consisting of a number of substances, sometimes called additives, the nature and proportion of which vary according to the animal production requirement. As stated by appellants, squid liver powder is used in shrimp feed formulation as an attractant. It is common knowledge that feeding is the main way for fish to obtain nutrition for the survival, growth and reproduction of fish/ shrimp etc. Attractants are added to the feed to improve not only the feed palatab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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 the sides. We find that the appellant M/s Godrej Agrovet Ltd have admitted in their submissions that they had filed BE No 543857 dated 19/06/2010 under CTH 23099010, which they claim was a mistake. Again, it is seen from the documents filed by them along with their appeal that in the earlier Bill of Entry No 467736 dated 23/03/2010 they have classified squid liver powder under CTH 23099010. The Learned Commissioner Appeals had held the appeal against this Bill of Entry to be time barred and the appellant has not challenged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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 even have a persuasive value. They have also referred to the decision of the Tribunal in the case of Zymonutrients Pvt. Ltd. Vs. Commissioner of Customs reported in 2020 (372) ELT 458 (Tri. Chennai) to state that Heading 2309 talks of preparation of a kind used in an animal feed and that by no stretch of imagination are the products imported by the appellant preparations of a kind for animal feed. The goods in question in the cited judgment pertains to yeast which is a single ingredient product covered under a specific heading a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 merit a repetition. Moreover, the appellant has relied upon the HSN to state their case. The Hon'ble Supreme Court in Commissioner of Customs and Central Excise, Amritsar (Punjab) Vs. D.L. Steels etc [2022 SCC OnLine SC 863], has held that, in the present times, given the widespread adoption of the Harmonised System by over 200 countries, it would be extremely difficult to deal with an international trade issue involving commodities, without adverting to the Harmonised System. The Code is the bedrock of custom controls and procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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