TMI Blog2011 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... al is filed by the revenue against Order-in-Original No.18/2006 dated 29.8.2006. 2. The relevant fact that arise for consideration are the respondent-assessee in this case was manufacturing Di-calcium Phosphate (Animal Feed Grade) (hereinafter referred to as finished goods) and clearing the same without paying any duty and classifying the same under Chapter Heading No.23099090. Lower authorities were of the view that the respondent-assessee s finished goods would merit classification under Chapter Heading 28352500 attracting 16% Duty and Education Cess. Coming to such a conclusion, a show cause notice was issued for demand of Central Excise Duty and Education Cess along with proportion for imposition of penalty and demand of interest. Respondent-assessee contested the show cause notice on various grounds before the Adjudicating Authority. The Adjudicating Authority after considering the written and oral submissions, vide impugned order dropped the proceedings initiated by the said show cause notice dated 6.3.2006. Aggrieved by such an order, the revenue is in appeal. 3. The learned SDR while assailing the order, would draw our attention to the show cause notice. She would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position, she would rely upon the judgment of Hon ble High Court in the case of CCE, Visakhapatnam Vs. JOCIL Ltd. - 2011 (263) ELT 9 (SC). The learned SDR would also draw our attention to the extracts of HSN Notes of Chapter 2835 and the Chapter Note to said HSN classification. She would submit that the only exception provided in the said HSN is regarding the Di-calcium Phopshate which has more than 0.2% by weight of fluorine which would fall under Chapter Heading No.31.03 or 31.05. It is her submission that communication of doubt in any classification, HSN is the correct guiding factor, is a settled law. 4. The learned Sr. Counsel Shri Joseph Vellapally and Shri Thomas Vellapally, Counsel appeared on behalf of the respondent-assessee. The learned Sr. Counsel would draw our attention to the judgment of this Tribunal in the assessee s own case prior to 1.3.2005. He would also draw our attention to the dismissal of the appeal filed by the revenue against such order. He would submit that when the matter reached to Hon ble Supreme Court, it was against an Order-in-Original passed by the Adjudicating Authority on 23.4.1997. He would draw our attention to the said Order-in-Original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the product in the trade parlance. 16. Prior to 28.2.2005, as per the decisions of the Hon ble Appellate Tribunal and the Hon ble Apex Court, the product was classified under heading 2303 which pertained to products of a kind used in animal feeding, not elsewhere specified or included . In the 8 digit Central Excise Tariff introduced with effect from 28.2.2005, there is a heading, namely, 2309 dealing with preparations of a kind used in animal feeding attracting NIL rate of Central Excise duty in the tariff itself. Therefore, the products of a king used in animal feeding classifiable in heading 23.03 prior to 28.2.2005 will now get classified under heading 2309 as preparations of a kind used in animal feedings . 17. As regards heading No.2835, the description prior to 28.2.2005 read as follows: 2835 2835.00 Phosphinates (hypophosphites), Phosphonates (Phosphites); phosphates and polyphosphates With effect from 28.2.2005, the revised description is as follows:- 2835 PHOSPHINATES (HYPOPHOSPHITES), PHOSPHONATES (PHOSPHITES) AND PHOSPHATES; POLYPHOSPHATES, WHETHER OR NOT CHEMICALLY DEFINED 283510 Phosphinates (hypophosphites) and Phosphonates (Phosphites) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls so as to warrant reclassification of Dicalcium Phosphate (Animal Feed Grade) from chapter 23 to chapter 28. Therefore the classification of Dicalcium phosphate (Animal Feed Grade) continues to be under chapter 23 attracting Nil rate of duty even after introduction of 8 digit Tariff effective from 28.2.2005 and I hold accordingly. It can be seen from the above reproduced factual findings of the Adjudicating Authority that the manufacturing process of the product has not changed pre and post 1.3.2005. It is also seen that the Adjudicating Authority had come to a conclusion that the products manufactured by the respondent-assessee would not merit classification under Chapter Heading 2835 on the ground that the dicalcicum phosphate other than animal feed can only be brought into that heading. We find that the said factual findings of the Adjudicating Authority are not challenged by the revenue in their grounds of appeal. 5.3 In the revenue s appeal, the following are the grounds of appeal. A The reasoning of the Adjudicating Authority is not acceptable as Di-calcium Phosphate in question should have been treated as products of Chemical or Allied Industries meriting classific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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