9911796707
TMI Blog2014 (10) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... from 10.09.2009 as clearances made under exemption Notification No. 4/2006-CE dated 01.03.2006 as amended. The appellants classified the micronutrients under tariff item No. 31059090 of Central Excise Tariff Act 1984. According to the Revenue this is a residual entry covering other fertilizers and micronutrients are out of scope and are not covered by this tariff heading. Thereafter the samples were drawn and chemical test was made and after investigation and issue of show-cause notice the impugned order has been passed confirming demand for central excise duty of more than Rs. 1.23 crores on the ground that the micronutrients are classifiable under CETH 3808 9340 of the schedule to the Central Excise Tariff Act 1985. Penalty equal to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the labels, it was mentioned that all these micronutrients play a very significant role in physiological growth and biochemical process of crop/plants. In this case in the impugned order there is no consideration or discussion about the package. However the learned counsel has submitted a sample label and in the sample label it has been mentioned on top "micronutrient fertilizer". We also find that in the case of Karnataka Agro Chemicals, para 25 of the decision of the Hon'ble Supreme Court has been extracted. For better appreciation we reproduce the same here also: "25. In the show-cause notice, no allegation was made by the Department that the impugned product(s) is a distinct chemical compound. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only as a pretence so that the impugned product (s) could be classified as "other fertilizer" under CSH 3105.00".
From the extraction of para 25 made above it can be seen that Hon'ble Supreme Court clearly observed that PGR do not contain N, P or K. According to the Chemical Examiner's report submitted by the appellant and it forms part of the records and not disputed by the Revenue, micronutrient fertilizers manufactured by the appellants contain N, P or K. The above discussion would show that the appellants have made out a prima facie case on merits. Accordingly the requirement of pre-deposit is waived and stay against recovery granted during the pendency of appeal.
(Order dictated and pronounced in open court) X X X X Extracts X X X X X X X X Extracts X X X X
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