TMI Blog2017 (4) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... dress the issue of utilisation of a licence that was allegedly not permissible to be used for import of the impugned goods - Matter is remanded back to adjudicating authority to consider all the allegations in the notice and issue a fresh order - appeal allowed by way of remand. - C/204/2006, C/CO-272/2006 - A/86269-86270/17/CB - Dated:- 8-3-2017 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri D K Sinha, Assistant Commissioner (AR) for the appellant Shri Bipin Garg, Advocate for the respondent ORDER Per CJ Mathew Revenue is in appeal against order-in-original no. 153/2004/CAC/CC/RJM dated 30th November 2004 of Commissioner of Customs (General), Mumbai which dropped the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total duty liability in accordance with revised classification was crystallised at ₹ 83,62,979. 3. It is admitted in the record of proceedings that the samples tested by Textile Committee found the description to be in conformity with the declaration and thus the adjudicating authority held that there was no conclusive evidence of misdeclaration of description warranting confiscation under section 111 of Customs Act, 1962. 4. It was also held in the impugned order that the misdeclaration of weight did not warrant confiscation with the duty being leviable at specific rate related to linear measurement. Against the further contention that weight-to-area was a material particular that had been misdeclared, the adjudicating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Now, the question whether the animal feed supplement would fall under the Exemption Notification dated 1-11-1982. As noticed earlier similar question was considered by the Bombay High Court and the learned Judge expressed the view as follows : The preparations in question are used to supplement animal feed. Sometimes animal feed or poultry feed is already fortified with these vitamins when sold. Sometimes, however, farmers prefer to add the vitamins either to animal feed or to poultry feed separately. These products strengthen the nutritional quality of animal feeds. Thus, for example, items like Bournvita or Complan also add nutrients to milk. But they are not for that reason, medicines. In a general sense every kind of nourish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Gujarat Sales Tax Act, 1969 or poultry feed within the meaning of Entry 22 of the Schedule I of that Act. The Gujarat High Court has held that the terms cattle feed and poultry feed must include not only that food which is supplied to domestic animals or birds as an essential ration for the maintenance of life but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes such as for reproduction, for production of milk, eggs, meat, etc. or for efficient output of work. The same reasoning would apply to the present case also. These products are also fed to animals or poultry to give them better nourishment. They would, therefore, qualify as animal feeds . It was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given effect to. There is no material on record to show that this has been rescinded or departed from, and even so, to what extent. Even assuming that the later tariff advice No. 6/85 has taken a different view - about which there is no positive material - the facts point out that the concerned department itself was having considerable doubts about the matter. The position was not free from doubt. It was far from clear. In such a case, where two opinions are possible, the assessee should be given the benefit of doubt and that opinion which is in its favour should be given effect to. In the light of the above, it is unnecessary to adjudicate the other points involved in the appeal on the merits. 7. In the same vein, reliance was place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e yarn used is non-texturised. The Adjudicating Authority has not discussed anywhere as to how the said opinion given by the Chemical Examiner of the Custom House Laboratory is incorrect or is not worthy of giving credence to. On the contrary, he has chosen to rely upon the Textile Committee's opinion without going into the fact as to how the said opinion is contrary to the opinion of the Chemical Examiner and without dealing with the appellant's contention that Textile Committee is mainly dealing with the Jute Textile and does not have sufficient mechanism to arrive at the correct report. 6. In view of the two different and contrary reports of two different statutory bodies, in normal circumstances, we would have sent the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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