TMI Blog2014 (5) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... try in Sr. No. 0305 has remained the same before 1-1-2012 and after 1-1-2012 though rate of drawback has changed. As per reference Note 1 of Notification No. 92/2012-Cus. (N.T.), dated 4-10-2012 and earlier Notification No. 68/11-Cus. (N.T.), dated 22-9-2011, the duty drawback schedule is aligned with the first schedule to Customs Tariff Act 1975 at the four digit level only. The drawback schedule entry 0305 remained unchanged before and after 1-1-2012 and therefore classification of fish maw in Sr. No. 0511 before 1-1-2012 is not legally sustainable. Fish maws is rightly classifiable under drawback schedule Sr. No. 0305 for the period prior to 1-1-2012 also. Therefore, fish maws is rightly classifiable under drawback schedule heading 0305 during the period prior to 1-1-2012 and after 1-1-2012. The drawback claims initially sanctioned to the applicants were in order and order for recovery of drawback claim @ 1% is not legally sustainable. Therefore the orders sanctioning drawback claim @ 2% is upheld. - Decided in favour of appellant with consequential relief - F. No. 371/13-23/DBK/2014-RA - 145-155/2014-Cus - Dated:- 19-5-2014 - Shri D.P. Singh, Joint Secretary ORDER T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - CUSTM - AXP - APP - 298 299/ 13 - 14 dated 11-11-2013 M/s. Rehmania Sea Food, Sea Breeze Apartment, Gr, Floor, Koliwada, Vasai West, Dist : Thana 10. 371/22/DBK/14-RA MUM - CUSTM - AXP - APP - 290 291/13-14 dated 11-11-2013 M/s. Star Marine Exports, Dnyaneshwar Nagar CHSL, C-2, Flat No. 40, 4th Floor, R.a. Kidwai Road, Wadala, Mumbai - 400031. 11. 371/23/DBK/14-RA MUM - CUSTM - AXP - APP - 306 307/ 13 - 14 dated 11-11-2013 M/s. Nizami Sea Food, Harun Trading Compound, Sewri Cross Road, Sewri (W), Mumbai - 400015 2. Brief facts of the case are that the applicants, the merchant exporters dealing in the export of fish and fish products, in particular Fish Maws exported consignments of fish maws during 2011-12 under claim of drawback by classifying it under drawback schedule Sr. No. 305 claiming drawback @ 2%. The said drawback claims were sanctioned to the applicants. Subsequently, the investigations conducted revealed that the exporters were wrongly classifying Fish Maws under Drawback S. No. 305 to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The first Schedule to the Customs Tariff Act was amended as on 1st January, 2012. The following amendments were made applicable in Chapter Heading 0305. A new classification has been included for fish fins, heads, tails, maws etc. - Smoked fish, including fillets changed to :- Smoked fish, Including fillets, other than edible fish offal; - Dried Fish, whether or not salted but not smoked changed to :- Dried fish other than edible fish offal, whether or not salted but not smoked - Fish salted but not dried or smoked and fish in brime changed to :- Fish salted but not dried or smoked and fish in brime, other than edible fish offal. THE NEW SUB-CLASSIFICATION to Chapter Heading 0305 reads as : - Fish fins, heads, tails, maws and other edible fish offal. - 0305 71 00 - Shark fins - 0305 72 00 - Fish heads, tails and maws - 0305 79 00 - Others 2.6 Prior to the changes in the Customs Tariff (before 1-1-2012) Fish Maws (Swim bladder of fish) being an offal would meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants have filed these revision applications under Section 129 DD of the Customs Act, 1962 before Central Government on the following grounds : 4.1 The Applicants submit that the item exported by them is Fish Maws which is a bladder/part of a fish and is an edible delicacy in Chinese food Preparations as evidenced by a large literature on the subject available, freely on the internet. Being an item specifically of fish origin, its classification has necessarily to be under the chapter which is Fish namely Chapter 3 of the duty drawback schedule. It is clearly recognized that the fish as a species is distinct from Animals, therefore parts of fish are rightly classifiable under Chapter 3 and not under Chapter 5 which covers Animal Products not elsewhere specified. Therefore on this ground also the impugned order is liable to be set aside. 4.2 Kind attention is also invited to entry 0511 which reads as Animal products not elsewhere specified or included; dead animals of chapter 1 or 3, unfit for human consumption. The qualifying words unfit for human consumption would mean that without prejudice to the foregoing argument, Fish Maws being edible products of fish orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SN explanatory notes while giving his opinion. Commissioner failed to appreciate that the clarification of the Assistant Commissioner was neither rescinded nor modified and was therefore binding upon the department. Argument of the Commissioner therefore is unsustainable and the impugned order liable to be set aside on this ground also. 4.6 The applicants also submit copy of letter of clarification No. 01/61/180/48/AM14PC3 dated Dec 2013 of the Ministry of Commerce according to which Fish Maws was correctly classifiable u/h 0305 both prior to and after 1-1-2012 and eligible for export benefit accordingly. The impugned order is clearly liable to be set aside on the basis of this clarification as well. 5. Personal hearing was scheduled in this case on 5-5-2014 13-5-2014. Hearing held on 13-5-2014 was attended by Shri. Ravinder Jain, Consultant on behalf of the applicants who reiterated the grounds of revision applications. 6. Government has carefully gone through the relevant case records available in case file, oral written submissions and perused the impugned orders-in-original and orders-in-appeal. 7. Government observes that the applicants exported the goods namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid HSN notes, the item is classified in CTH 0305 72 00 w.e.f. 1-1-2012. The description, use and nature of said product remained same and it will be anomalous to classify it under drawback Sr. No. 0511 upto 31-12-2011 and under Sr. No. 0305 after 1-1-2012. The entries have been changed in custom tariff heading and not in drawback schedule. In the instant case the dispute relates to classification of item under drawback schedule. So, there is no logic for classifying said item differently during the period prior to and after 1-1-2012. Moreover the drawback schedule entry in Sr. No. 0305 has remained the same before 1-1-2012 and after 1-1-2012 though rate of drawback has changed. As per reference Note 1 of Notification No. 92/2012-Cus. (N.T.), dated 4-10-2012 and earlier Notification No. 68/11-Cus. (N.T.), dated 22-9-2011, the duty drawback schedule is aligned with the first schedule to Customs Tariff Act 1975 at the four digit level only. The drawback schedule entry 0305 remained unchanged before and after 1-1-2012 and therefore classification of fish maw in Sr. No. 0511 before 1-1-2012 is not legally sustainable. Fish maws is rightly classifiable under drawback schedule Sr. No. 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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