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TMI Blog1996 (9) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by them should not be classified as "plant growth regulators" under Heading 38.08.90. The show-cause notice related to the period 1st April, 1986, to 23rd September, 1989. The appellants showed cause and led evidence at the personal hearing before the Collector on 6th December, 1989. On 11th December, 1989, an Addendum was issued to the show-cause notice dated 6th November, 1989, which required the appellants to show cause why their micronutrients should not be classified under Heading 38.23 as "residual products of chemical or allied industries, not elsewhere specified". On 22nd February, 1990, a Corrigendum was issued to the show-cause notice aforementioned which sought to classify the micronutrients under Heading 38.23 as "chemical products and preparations of the chemical or allied industries (including those consisting of mixture of natural products) not elsewhere specified". On 14th April, 1990, the appellants showed cause. 4.On 20th June, 1990, a circular (now called "the earlier circular") was issued by the Central Board of Excise and Customs (now called "the Board"), addressed to all Collectors of Central Excise, on the subject of the classification of micronutrients ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to the earlier circular and "and the instructions contained' therein. It noted that the earlier circular had stated that micronutrients were appropriately classifiable under Heading 38.08 as "plant growth regulators". The Indian Micro Fertilisers Manufacturers' Association had represented that micronutrients should be classified under Heading 31.05 as 'other fertilisers' and had produced certificates issued by various Agricultural Universities as evidence in support of their claim. The Board had carefully re-examined the entire issue in consultation with the Ministry of Agriculture and the Chief Chemist. The Ministry of Agriculture had clarified that micronutrient were recognised as fertilisers under the Fertiliser Control Order, 1985. The Chief Chemist had opined that the technology and trade micronutrients were classifiable along with fertilisers. In terms of Rule 4 of the Interpretative Rules of the Central Excise Tariff, micronutrients merited classification as fertilisers. The later circular added : Therefore, it is clarified that micronutrient listed under"4. Sr. No. 1(F) of Schedule 1 Part (A) of the Fertilizer Control Order, 1985 and their mixture (with or without N.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actment and not by advisory circulars. In the absence of any amendment by enactment of Chapter 31, the appellants could not take shelter under the later circular in the matter of the classification of their product, which classification had already been judicially decided by the Tribunal to be under Heading 3008.90. The later circular could not be given retrospective effect once the classification dispute for the relevant period had been settled by the earlier circular. 9.Learned Counsel for the appellants relied upon the later circular and proceeded further, but we intervened for we wanted to hear learned Counsel for the Revenue upon the earlier and later circulars. 10.Learned Counsel for the Revenue submitted that the later circular "flies in the face" of Note 6 of Chapter 31. Micronutrients did not contain any of the fertilising elements, nitrogen, phosphorous and potassium and, therefore, the later circular had no effect on their classification. Both the earlier and the later circulars were only advisory in nature because it was clear on the face thereof that they had not been issued by invocation of the provisions of Section 37B. In any event, and assuming that the later cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, all Collectors of Central Excise and Customs, all Collectors of Central Excise, all Collectors of Customs and all Collectors of Central Excise and Customs (Appeals). Both circulars require that their contents "be brought to the notice of the lower field formations and the trade interests may also be suitably advised". Both circulars require, "All pending assessments may be finalised on the above basis". The later circular refers to the contents of the earlier circular as "instructions". Both circulars have been issued in the context of doubts having arisen and representations having been received by the Board. Both circulars have been issued by the Board in consultation with the Chief and Deputy Chief Chemist and, in the later case, the Ministry of Agriculture. 13.There can be no doubt whatsoever, in the circumstances, that the earlier and later circulars were issued by the Board under the provisions of Section 37B and the fact that they do not so recite does not mean that they do not bind Central Excise officers or become advisory in character. There can be no doubt whatsoever that after 21st November, 1994, Excise duty could be levied upon micronutrients only under the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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