TMI Blog2010 (3) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 0511 - 748 of 2006 - - - Dated:- 10-3-2010 - REPRESENTED BY: Shri R.K. Chowdhury, Advocate, for the Petitioner. None, for the Respondent. [Judgment]. - This writ challenges a final order dated 2nd March 2006, passed by Customs, Excise and Service Tax Appellate Tribunal, EZB [2007 (208) E.L.T. 464 (Tri.-Kolkata) This final order was passed by a majority of 2: 1. 2. This writ application was moved before the Court on 9th June, 2006. Directions for filing affidavits were made. No affidavit in opposition is available in the record, though I find an affidavit-in-reply has been filed. This goes to point that a copy of the intended affidavit-in-opposition was served by the respondents upon the petitioner but the affidavit-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the heading 0511.99 under the said act, and were not 'prawn feed' at all. These cysts had to be incubated in controlled temperature and oxygen and hydrated in hatcheries and after this incubation period one would get an organism known as Nauplii. These Nauplii is the food for prawn. Therefore, according to them these imported goods have to undergo some "processes" to become 'prawn feed'. Therefore, there was mis declaration of goods and the writ petitioner would have to face the consequences of it. 5. Mr. R.K. Chowdhury for the petitioner has principally/made the following submissions : (a) Provisional assessment was made on or about 15th April, 1999 but no final assessment was ever made. (b) The show cause notice was issued on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat decision that liability to pay alleged short paid duty arose only upon completion of assessment. Discussion and reasons: 7. The goods are classified according to their description, in the schedules appended to the said Act. This classification is made because according to the Act different kinds of goods are exigible to different rates of duty. A particular use of the goods may also be suggested in the classification so as to determine the rate of duty charged. Any person who makes an estimation of duty char able has to first classify the goods properly. If a particular use of a product is indicated whether that use can be had of that particular imported product has also to be seen. Essentially, classification of goods reflects th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product and it is used for the purpose specified in the classification. For example, if mangoes were classified as a product, I think if raw mangoes were imported and subsequently by some process there was a change in the condition, i.e. ripeness the product would still be classified as mango. This is because the essential nature and character of the product remains the same. In this case it is essential to determine whether the nature and character of the product remains the same. 8. Here, the contention of the writ petitioner is that these imported cysts contained little organisms or embryos which later became larva that prawns feed on. From this cystic stage this little organism is nurtured and incubated till it grows and attains pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be classified in the 'other category' under the heading 0511 for reasons given by me below. 12. It is the categorical case of the writ petitioner that these goods which were imported by them were fertilised eggs. They contained embryos or little organisms enclosed within the cysts, which upon incubation in controlled temperature and hydration would become larvae which could be used as prawn feed, it is submitted. 13. If there is an embryo within the egg, then there is a living organism within it. Upon such incubation the living organism merely grows, it does not change its nature and character. If there is no embryo within the eggs then there is no living organism and these eggs cannot be used as prawn feed. I am of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods contained an embryo or a live organism. This factual enquiry ought to have been made upon notice to the writ petitioner and after giving them an opportunity to counter the evidence of the revenue and to produce his own evidence in support of his contention. 16. For those reasons, the order of the tribunal dated 2-3-2006 as well as the order of the Commissioner dated 6-11-2002 are set aside. The Commissioner of Customs (Airport and Administration) is directed to rehear and re-decide the matter in accordance with the above observations within a period of 12 weeks from the communication of this order. The writ application is allowed. 17. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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