9911796707
TMI Blog2025 (4) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... cts powder" covered by the Bill of Entry No. 7342173 dated 19.12.2024 for home consumption by assessing them to duty of customs under Chapter 31; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India ordering and directing the Respondents, their officers and subordinates to assess the imports of "Acadian Seaplants Soluble Seaweed extracts powder", and permit clearance thereof for home consumption on payment of duty under Chapter 31; (c) this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India, calling for the records pertaining to the Petitioner's case and after examining the propriety, legality and validity of the Order-in-Original No. 237/2024-25/Commr/NS-III/CAC/JNCH dated 23.12.2024 passed by the Respondent No.2 (Exhibit A) and impugned decision of the Chief Commissioner purporting to extend time to determine the duty pursuant to the show cause notice dated 07.01.2023 be pleased to quash and set aside the same; (d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said SEAWEED EXTRACT under CTH 3101 00 99 and accordingly assessed Bill of Entry No.951945 finally. The learned Commissioner of Customs (import), JNCH, reviewed the said order dated 26th May 2010 and accordingly directed the Deputy Commissioner to file an appeal before the Commissioner of Customs (Appeals), Mumbai. As per these directions, the Deputy Commissioner, JNCH filed an Appeal before the Commissioner (Appeals), JNCH. By the order in Appeal, the Commissioner (Appeals) allowed the same and held that the said SEAWEED EXTRACT is a "plant growth regulator" classifiable under CTH 3808 and not under CTH 3101. 6. Being aggrieved by this order in appeal, the Petitioner filed a further appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). By order dated 3rd May 2013, the CESTAT remanded the matter back to the Assessing Officer and directed the Department to draw samples for future imports and send it to be tested by Indian Agricultural Research Institute (IARI). Accordingly, the Deputy Commissioner, JNCH, after drawing all these samples and after receipt of the test report, by his order dated 1st July 2020, accepted the classification of the said SEAWE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a confirm the actual date of the Show Cause Notice. In response to the same, the learned Assistant Commissioner in the office of Respondent No.3, vide his letter dated 29th May 2023 informed that the Show-cause-Notice was issued on 9th February 2023 and the date mentioned as 7th January 2023, was a typographical mistake. There is also correspondence on record whereby the Advocates of the Petitioner have requested for supply of (a) copy of records of the pre-consultation hearing conducted on 25th January 2023; and (b) copy of the Customs Analytic Report 24/2022-23 of the Additional Director General, DGARM, NCTC, Mumbai, and which was referred to in the Show Cause Notice, but not supplied to the Petitioner. 10. Be that as it may, on 20th December 2023, a personal hearing letter was issued intimating that a personal hearing would be given to the Petitioner by Respondent No.3 on 22nd December 2023. On the date of the personal hearing, the Petitioner, vide its letter of the same date, requested Respondent No.3 once again to provide documents referred to earlier. Thereafter, another personal hearing Notice was issued on 16th August 2024 fixing the hearing on 12th September 2024. Before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder and the Petitioner has an efficacious alternate remedy against the Impugned Order. (b) The contention of the Petitioner that the said SEAWEED EXTRACT is a Fertilizer is fundamentally flawed and disregards the clear provisions of the Customs Tariff Act, 1975, the Harmonized System of Nomenclature (HSN) Explanatory Notes, and binding Classification Principles. (c) The impugned order correctly classified the products under CTH 1212 based on the fresh examination of the Tariff Classification Rules, including Chapter Notes, Section Notes and Explanatory Notes, which provides the guiding framework for classification disputes. (d) Chapter 12 of the Customs Tariff Act, 1975 specifically covers locust beans, Seaweed and other algae etc. whether they are fresh, chilled, frozen or dry, or whether or not ground. The HSN Explanatory Notes for Chapter 12, Heading 1212, clearly states that all forms of Seaweed, whether or not ground, remain classified under this heading, regardless of their intended use. Though, Chapter Note 5(c) to Chapter 12 provides an Exclusionary Clause for Fertilizers, this classification only applies when the Seaweed product has undergone substantial chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned Order, a test report was called for. This test report is dated 25th January 2024. This test report itself records the matters on which opinion was required, and the findings of the testing Authority. For the sake of convenience the same is reproduced hereinunder:- "Matters on which opinion is required: 1. Nature The above submitted sample is in the form of Black Powder material of Non-uniform sizes in nature 2. Composition The above submitted sample conform as, Acadian Seaplants Soluble Seaweed Extract Powder 3. Whether Organic Fertilizer On the basis of Above tested parameter it conforms as, Organic Fertilizer 4. Please test whether sample contains: Plant Growth Regulator viz. i) Auxins, ii) Gibberellins, iii) Cytokinins, iv) Abscisic Acid, v) Ethylene, alongwith natural growth substance that have any phytoharmones like regulatory roles (polyamines, oligosachharins, salicylates, jasmonates, sterols, brassinosteroids, dehydrodiconiferyl alcohol glucosides, turgorins, jasmonates, unreald natural stimulators and inhibitor) as well as myoinositol as mentioned in CBIC circular No. 1022/10/2016-CX Dated: 06.04.2016 On the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Impugned Order the said Chapter Note is referred to, there is absolutely no reasoning given as to why the exclusion would not apply. 19. We now deal with the issue of the live consignment, namely, the consignment imported by the Petitioner under Bill of Entry No. 7342173 dated 19th December 2024. Considering what we have stated above, in the peculiar facts of the present case, we direct that the said SEAWEED EXTRACT covered under Bill of Entry No. 7342173 dated 19th December 2024 shall be provisionally released on a bond executed by the Petitioner in the format required by the Custom Department. This provisional release shall be done within a period of one week of the Petitioner executing the aforesaid bond. We clarify that the Customs Department shall not insist on the Petitioner furnishing any security, either by way of Bank Guarantee or otherwise, other than furnishing the aforesaid bond. We have taken this view in the peculiar facts of this case, considering that in the past, the said SEAWEED EXTRACT imported by the Petitioner has, in fact, been classified under CTH 3101 and not under CTH 1212 or CTH 3808. 20. Even as far as future consignments are concerned, at least until ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
