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TMI Blog1996 (1) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under sub-heading No. 2301.20 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of the amount calculated at the rate of 15% ad valorem. [Notification No. 17/93-Cus., dated 28-2-1993]." 4. Shri V.S. Nankani, learned Advocate appearing for the appellants submitted that the appellants imported Prawn Feed Supplement as can be seen from the Bill of Entry dated 19-8-1993. He admitted that the goods, Prawn Feed Supplement is different from Prawn Feed. But there is no dispute as regards classification of the goods since they fall under Tariff Heading 2309.90. Referring to the Tariff Entries 23.01 and 23.09, he said that Heading 23.01 covers flours, meals and pellets, of meat or meat offal, of fish or crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves and sub-heading 2301.20 covers flour, meals and pellets, of fish or of crustaceans, molluscs or other aquatic invertebrates whereas Heading 23.09 covers preparation of a kind used in animal feeding and sub-heading 2309.10 cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplement' in the Notification No. 55/75-C.E. by amending Notification 6/84-C.E., dated 15-2-1984. 5. While countering the arguments, Shri P.K. Jain, learned SDR for the Revenue submitted that the only point to be considered in this case is with reference to eligibility of exemption under Notification 17/93 in respect of the commodity imported by the appellants. Admittedly the appellants imported Prawn Feed Supplement and not Prawn Feed as such. Prawn Feed is different from Prawn Feed Supplement and even in commercial parlance they are understood as different commodity since they are not one and the same. He said that 2309.90 - `other' covers only Prawn Feed Supplement is not correct as argued by the other side. But it covers not only supplementary feed but also complete feed and in support of his contention he referred to the Entry 23.09 as appeared in page 175 of Explanatory Notes (HSN). The relevant Heading is as under :- "23.09 Preparations of a kind used in animal feeding. 2309.10 - Dog or cat food, put up for retail sale 2309.90 - Other This heading covers sweetened forage and prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in denying the benefit of exemption in terms of Notification No. 17/93 as per wordings. Since the issue has been rightly considered, we do not find any infirmity in the impugned order in denying the benefit of exemption in terms of aforesaid Notification. Accordingly we uphold the impugned order by dismissing appeal filed by the party. Dated 3-5-1995 Sd/- (G.A. Brahma Deva) Member (J) 7. [Contra per : K. Sankararaman, Member (T)]. - I have very carefully gone through the order recorded by my learned Brother, Shri G.A. Brahma Deva. As I do not agree with the conclusion drawn by him that the benefit of exemption under Notification 17/93, dated 28-2-1993 is not admissible to the appellants, I am recording my separate dissenting order. 8. It was the case of the learned Counsel for the appellants, Shri V.S. Nankani that as the aforesaid notification exempts Prawn Feed falling under sub-heading No. 2301.20 or 2309.90, the benefit of exemption would cover not only Prawn Feed but Prawn Feed Supplement also. The former sub-heading would cover, according to him, Prawn Feed proper while the latter sub-heading would cover Prawn Feed Supplement. Any other interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of several nutrients designed, inter alia, to achieve a suitable daily diet by supplementing the basic farm produced feed with organic or inorganic substances (supplementary feed). The further explanation of the entry, "other preparations" as given in the HSN Notes is extracted below :- "(II) OTHER PREPARATIONS (A) PREPARATIONS DESIGNED TO PROVIDE THE ANIMAL WITH ALL THE NUTRIENT ELEMENTS REQUIRED TO ENSURE A RATIONAL AND BALANCED DAILY DIET (COMPLETE FEEDS) The characteristic feature of these preparations is that they contain products from each of the three groups of nutrients described below : (1) "Energy" nutrients, consisting of high carbohydrate (high calorie) substances such as starch, sugar, cellulose and fats, which are "burned up" by the animal organism to produce the energy necessary for life and to attain the breeders' aims. Examples of such substances include cereals, half sugar mangolds, tallow, straw. (2) "Body-building" protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not "burned up" by the animal organism but contribute to the formation of animal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prawn feed. It was on this [scope] (Sic.) that the benefit of exemption has been denied to the material imported which is admittedly prawn feed supplement. This question, however, stands resolved by two High Court decisions with reference to the entry animal feed which appeared in Notification No. 55/75 covering the then existing Central Excise Tariff Item 68. 10. The judgment of the Bombay High Court in Glindia Limited v. Union of India reported in 1988 (36) E.L.T. 479 (Bom.) had been relied upon by the learned Counsel for the appellants for his preposition that the term Prawn Feed would itself cover Prawn Feed Supplement also. He had also cited a Tribunal decision in the case of Collector of Central Excise v. Punjab Bone Mills reported in 1988 (38) E.L.T. 389. In the former case decided by Honourable Bombay High Court, it was held that animal feed concentrate are animal feed and in the same manner products which supplement animal feed and are generally added to animal feed are also covered by the generic term animal feed. Para 8 of the High Court judgment is extracted below :- "8. It was submitted by the respondents that the subsequent amendment expressly refers to "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant elements of its feed, are most apt to be lacking in natural live-stock feeds and that they are included as additives in mixed feeds so as to make good the deficiency. Against this background, let us now turn to the products in question and ascertain what their properties are. At serial Nos. (1) and (2) are items cattle-feed. According to the literature pertaining to those products, which is on record, Vitablend AD3 [Serial No. (1) consists of Vitamins A and D3 enveloped in a protective gelatin-glucose matrix as uniform beadlets. It is used in cattle breeding programme for cows and buffaloes. It is also used to preserve the reproductive efficacy of the bulls and as essential feed of calves. Vitablend AD 3 Forte [Sl. No. (1)] is the same thing as Vitablend AD3, but in more concentrated form. Products Nos. (3) and (4) are items of poultry feed. According to the literature pertaining to these products, which is on record, Vitablend AD 2D 3 consists of vitamins A, B2 and D3 enveloped in a gelatin-glucose matrix in the form of minute beadlets and it is used as a carefully blended and properly balanced feed for growth of healthy profitable birds. It has to be mixed in the feeds, ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin sub-heading 2309.90. Accordingly I hold that the appellants are entitled to the benefit of the exemption notification in question. Dated 9-6-1995 Sd/- (K. Sankararaman) Member (T) DIFFERENCE OF OPINION 13. In view of the aforesaid difference of opinion between the Judicial Member and the Technical Member, the matter is submitted to the Honourable Vice President (I/C) for referring the question to a Third Member for resolution of the difference on the following question :- "Whether the product imported by the appellants Animal Prawn Feed Supplement is eligible for the benefit of exemption Notification No. 17/93-Cus., dated 28-2-1993 as held by the Technical Member or the said exemption is not admissible as held by the Judicial Member." Sd/- (G.A. Brahma Deva) Member (J) Dated 12-6-1995 Sd/- (K. Sankararaman) Member (T) Dated 9-6-1995 14. [Order per : R. Jayaraman, Member (T)]. - Under Misc. Order No. 225/95-D, dated 12-6-1995, the following point of difference of opinion has been referred to the third Member. "Whether the product imported by the appellants `Animal Prawn Feed Supplement' is eligible for the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feed supplement is only a component of prawn feed and not prawn feed itself. It is also not disputed that it is a premix for preparation of prawn feed. Hence, in the context of this admitted position, wording in the Notn. in question is to be looked into. Notn. specifies only prawn feed falling under sub-heading 2301.20 or 2309.90. Prawn feed would fall for classification under both sub-headings. It is not for including prawn feed supplement. The ld. advocate's argument that it cannot be presumed that the legislation have resorted to using words amounting to tautology, has no significance, viewed in the following context. (ii) When both the sub-headings seek to cover prawn feed and the legislative intention is to give exemption only to prawn feed, it is necessary to specify both the sub-headings and on that ground, it cannot be accepted that because sub-heading 2309.90 is specified, even prawn feed supplement would came under its sweep nor can it be construed that something more is contemplated in the exemption. (iii) leading the notification in the manner as pleaded by the ld. advocate is not in accordance with the settled law on the subject. The Supreme Court in seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including animal feed supplement cannot leave any ambiguity, for giving the benefit of ambiguity to the State. 19. Before analysing the rival contention from both the sides, I must put in a word of appreciation by saying that both the sides have provided me delicious and appetising food (or shall I say, in this case, `feed') for thought and not a mere `supplement' to the feed, provided to the original refering Bench. 19.1 Notification No. 17/93-Cus., dated 28-2-1993 exempts "prawn feed falling under sub-heading 2301.20 or 2309.20 and fish meal falling under sub- heading 2301.20." On a plain and straight reading of this notification, it would appear that prawn feed falling either under sub-heading 2301.20 or 2309.90 would qualify for exemption. On going through HSN 23.09, it is observed that it not only covers preparations for supplementing (balancing) farm produced feed but also preparations for use in making the complete feeds or supplementary feeds and also complete feeds. HSN 2301 seeks to cover flour, meals and pellets of meat or meat offal of fish or crustaceans or molluscs or other aquatic invertebrates, unfit for human consumption; greaves. In the context of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent can be effective only prospectively. In that context, the Bombay High Court (vide para 8) observed that the amendment is clarificatory in nature and that products, which supplement animal feed and are generally added to animal feed are also covered by the term `animal feed'. On a plain reading of the two judgments, one might be tempted to agree with Shri Nankani that both the High Courts have given an interpretation for the term `animal feed' so as to include animal feed supplement. But then, both the judgments did not have an occasion to consider the term `animal feed' or in this case `prawn feed' falling under either of the two sub-headings 2301.20 and 2309.90, out of which one would cover prawn feed and the other covering prawn feed as also supplements or premixes. I would not like to be carried away only by this razor edge distinction, but for the fact that both the above two High Courts had no occasion to take into account the decision of the Supreme Court in the case of Novopan. 19.4 Hence, it would be incumbent on me to go into the decision of the Supreme Court in the case of Novopan reported in 1994 (73) E.L.T. 369 (SC) for considering whether the principle enunci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthy, it was observed : "While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoided." The choice between a strict and a liberal construction arises only in case of doubt in regard to the intention of the legislature manifest on the statutory language. Indeed, the need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any interpretation. It appears to us the true rule of construction of a provision as to exemption is the one stated by this Court in Union of India v. Wood Paper Ltd. [1990 (47) E.L.T. 500(SC) = 1990 (4) SCC 256] : ".... Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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