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2023 (5) TMI 398 - AT - CustomsClassification of imported goods - Howaru probiotic culture - Recovery of differential duty - denial of benefit of the concessional rate of duty - imported goods are probiotics or not - HELD THAT:- It is seen from the show cause notices that there is no allegation that the impugned goods are not ‘probiotic cultures’ as claimed in the bills of entry. Nor is there any technical ascertainment that could lend support to any suggestion that the goods are not in accordance with the declaration. The notices have alleged misdeclaration of the goods which, having been permitted clearance, without the intervention that places onus on customs authorities to alter the classification in accordance with section 17 of Customs Act, 1962, owing to special status assigned to the importer, should also be properly classified in the bill of entry to pass muster even if the particulars relating to the goods are not, of itself, misdeclared. The purport of the proceedings initiated by the two notices leading to the impugned orders are clear: re-determination of classification. Though the adjudication orders appear to have suggested that the imported goods are not the final product for human consumption and, yet, as intermediary for manufacture of food supplements to be treated as food preparations, there is no finding that the goods are not ‘probiotic cultures’ or that, being ‘cultures’ and not ‘probiotics’ per se, are disentitled to the benefit of concessional rate of duty sought in the bills of entry. The issue of whether the goods are ‘probiotics’ or not is, thus, not relevant to the proceedings. In the normal course, such deficiency in adjudication proceedings would be remedied by remand for fresh determination. That, however, would be mere academic exercise, in circumstances of the claim that impugned goods are ‘probotic cultures’, for not having been disputed in the show cause notices and the appropriate tariff item within which ‘probiotic’ falls having been established by the exemption notification issued under Customs Act, 1962 - Though Learned Authorized Representative did try to fill the gaps by conjecturing upon the description in the invoice and by relying upon technical material to urge that the impugned goods do not conform to ‘probiotics’, acceptance of such argument would be tantamount to re-investigation and issue of fresh notice with new grounds, allegations and proposals which cannot be countenanced at the appellate stage. The impugned order is beyond remedy and must be set aside - Appeal allowed.
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