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2014 (5) TMI 1094 - CGOVT - CustomsDemand of excess drawback on the ground of wrongly classifying the products - Classification of item under drawback schedule Exported fish maws under claim of drawback under drawback schedule Sr. No. 0305 claiming drawback @ 2% which was initially sanctioned to them but department classified it under drawback heading 0511 attracting drawback @ 1% - Held that:- the Fish Maws is a bladder/part of fish which is fit for human consumption as the same is used in Chinese food preparations. The chapter-3 of drawback schedule covers fish and crustaceans, Molluses and other Aquatic Invertebrates whereas chapter-5 covers products of Animal organ not elsewhere specified or included and are unfit for human consumption. Since the fish/fish maws specifically covered in chapter-3, its classification is to be considered in chapter-3 itself. Fish maws is a fish dried product and fit for human consumption and therefore it cannot be classified in Sr. No. 0511. There is no logic for classifying said item differently during the period prior to and after 1-1-2012. Moreover the drawback schedule entry in Sr. No. 0305 has remained the same before 1-1-2012 and after 1-1-2012 though rate of drawback has changed. As per reference Note 1 of Notification No. 92/2012-Cus. (N.T.), dated 4-10-2012 and earlier Notification No. 68/11-Cus. (N.T.), dated 22-9-2011, the duty drawback schedule is aligned with the first schedule to Customs Tariff Act 1975 at the four digit level only. The drawback schedule entry 0305 remained unchanged before and after 1-1-2012 and therefore classification of fish maw in Sr. No. 0511 before 1-1-2012 is not legally sustainable. Fish maws is rightly classifiable under drawback schedule Sr. No. 0305 for the period prior to 1-1-2012 also. Therefore, fish maws is rightly classifiable under drawback schedule heading 0305 during the period prior to 1-1-2012 and after 1-1-2012. The drawback claims initially sanctioned to the applicants were in order and order for recovery of drawback claim @ 1% is not legally sustainable. Therefore the orders sanctioning drawback claim @ 2% is upheld. - Decided in favour of appellant with consequential relief
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