TMI Blog2015 (12) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... in Collector of Central Excise, Bangalore v. Tetragon Chemie (P) Ltd. [2001 (7) TMI 127 - SUPREME COURT OF INDIA]. In this judgment, the question that arose for consideration again relates to vitamins that were mixed with animal feed as animal feed supplements. Faced with an entry which spoke of preparation of a kind used in animal feeding including dog and cat food, this Court came to the conclusion that animal feed supplements were rightly includable in such entry as they were obviously preparations of a kind used in animal feed. We may only add that we have referred to this judgment for the sake of completeness. We feel that this judgment does not have direct relevance to the facts of this case as the entry that this Court was concerned with in that case was large enough to take within its ken animal feed supplements. This being the unsatisfactory state of the law as it stands today, we feel that this matter should be placed before Hon'ble the Chief Justice of India to constitute an appropriate Bench to resolve the doubts pointed out by us in the body of this Order. - Civil Appeal No. 3327/2007 - - - Dated:- 8-10-2015 - Mr. A.K. Sikri And Mr. Rohinton Fali Narima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re imported on same carrier such as Silica Maize etc., and are used for manufacture of 'Animal Feed' are to be considered as Animal Feed supplement and hence should be considered Animal Feed for the purpose of Animal Feed supplement and hence should be considered Animal Feed for the purpose of classification under CTH 23 of Customs Tariff. However, as far as benefit of Notification 20/99 (CUS) is concerned, the benefit of notification is available to 'Prawn Feed' only and not to 'Animal Feed' as was the case under notification no. 234/82-CE. 'Animal Feed' is a generic term and may include 'Prawn Feed', Poultry Feed, Cattle Feed and feed supplements as held by the Hon'ble Supreme Court's in the above noted case. Whereas the benefit of notification No. 20/99 is available to 'Prawn Feed' which is a restrictive terms unlike the terms 'Animal Feed'. Various High Courts and the Hon'ble Supreme Court in their various judgments has laid down that there should be strict interpretation of the notification. Hon'ble Supreme Court's judgment in M/s. Rajasthan Spinning and Weaving Mills Limited vs. Collector, 1995 (77) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nimal feed includes animal feed supplements and as such M/s. Sun Exports Corporation was declared to be entitled to refund under the relevant exemption notification. The brief facts as appears from the decision (at page 565) leading to these appeals are as follows: The appellant Corporation imported six consignments of goods [Pre-mix of Vitamin AD-3 Mix (feed grade)] at Bombay and seven consignments of similar goods at Calcutta. These consignments were assessed to duty under the heading 29.01/45(17) of the Customs Tariff Act, 1975 read with Item 68 of the Central Excise Tariff Act, 1985. The Corporation paid the duty. Later on, it claimed refund of the duty paid as countervailing duty contending inter alia that the goods imported were classifiable under Item 23.01/07 as Animal Feed and as per Notification No. 234/82-C.E., dated 1-11-1982, those goods were exempted from levy of duty. Accordingly, applications were filed for refund of the countervailing duty/additional duty paid on such imports. The Assistant Collector (Refunds) concerned rejected the claim of the appellant holding that the goods imported were assessable to duty under the heading 29.01/45(17) of the then pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the decision in Sun Exports Corporation's case (supra) delved into animal feed but by reason of the factual situation as noticed above, the same is clearly distinguishable and, in fact, does not lend any assistance in the matter in issue. According to the learned counsel, on a parity of reasoning, since the Sun Export Corporation's case had been distinguished in Surendra Cotton Oil Mills's case and on facts, the judgment of this Court in Surendra Cotton Oil Mills's case was, according to the learned counsel, in his favour, it is clear, therefore, that a prawn feed supplement with the imported product Vitamin E-50, as such would not fall within the expression Prawn Feed . He further argued that it is clear from a catena of decisions that an exemption Notification is to be strictly construed and if prawn feed supplements are not, in fact, included, they cannot be included by inference. He also argued that Sun Export Corporation's judgment is liable to be distinguished on the ground that the Bombay High Court judgment which was affirmed by this Court dealt with a later amendment to the exemption Notification in that case, which amendment was held to be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification dated 1-11-1982. As noticed earlier similar question was considered by the Bombay High Court and the learned Judge expressed the view as follows: ..The preparations in question are used to supplement animal feed. Sometimes animal feed or poultry feed is already fortified with these vitamins when sold. Sometimes, however, farmers prefer to add the vitamins either to animal feed or to poultry feed separately. These products strengthen the nutritional quality of animal feeds. Thus, for example, items like Bournvita or Complan also add nutrients to milk. But they are not for that reason, medicines. In a general sense every kind of nourishment strengthens the body against ailment. But such nourishment cannot be considered as a medicine or a drug. The two products are also known in the trade as animal feed supplements and they are sold by the suppliers of animal feed. * * * It is next contended by the respondent that even if the two products fall under Tariff Item 68 the benefit of the Exemption Notification No. 55 of 1975 cannot be given to these products because these products are not animal feeds. They are merely animal feed supplements. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. We are in agreement with the above view expressed by the Bombay High Court. No doubt it was contended on behalf of the Revenue that the contrary view taken by the Tribunal has been challenged in this Court which was rejected in limine at the admission stage. We do not think that that dismissal at the admission stage can be relied upon as a binding precedent. Even assuming that there are two views possible, it is well settled that one favourable to the assessee in matters of taxation has to be preferred. We have serious doubts as to whether the Bombay High Court judgment affirmed in Sun Export Corporation's case is correct. First and foremost, it is clear that the subsequent exemption Notification largely expanded the first Notification which referred only to animal feeds and nothing else. That being the case, it would be difficult to say that a large number of other categories which have subsequently been added would be clarificatory and therefore, retrospective. Further, we also feel that in view of the catena of judgments of this Court which have held that an exemption Notification has to be strictly construed (that is, if the person claiming exemption does not fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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