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2016 (11) TMI 2 - CESTAT MUMBAI

2016 (11) TMI 2 - CESTAT MUMBAI - TMI - Re-classification of imported goods - ‘mono potassium phosphate’ with purity of 99.6% - ‘fertilizers’ classified under heading 3105.60 of the First Schedule to the Customs Tariff Act, 1975 and heading 3105.00 of the Schedule to the Central Excise Tariff Act, 1985 or separate chemically defined compound classifiable under chapter 28? - whether the imported goods are ‘fertilizers’ within the meaning of chapter 31 of the First Schedule of the Customs Tariff A .....

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clusions that would enable classification within the ambit of chapter 28 - In the context of the present import, that particular line of reasoning may not provide the answer. The goods listed in notes 2(A), 3(A), 4(A) or 5 to which note 1(b) refer are intended to restrict the applicability under one or other of headings 31.02, 31.03, 31.04 as applicable. Note 6 of chapter in relation to the residuary category restricts classification under ‘other fertiliser’ in 31.05 to goods to be used as ‘fert .....

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r chapter 31 and not chapter 28. The inclusions of the imported items in the Fertiliser (Control) Order 1985, as amended in 1995, cannot but reinforce the opinion that these are indeed fertilisers as decided by the competent department of the Government of India - imported goods are fertilizers - appeal allowed - decided in favor of appellant. - C/928 to 930, 940 & 941/2004 C/229, 263 to 265/2007 & C/667/2004-NZB - A/90300-90309/16/CB - Dated:- 8-9-2016 - Shri M V Ravindran, Member (Judicial) an .....

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ers classified under heading 3105.60 of the First Schedule to the Customs Tariff Act, 1975 and heading 3105.00 of the Schedule to the Central Excise Tariff Act, 1985. One of the consignments imported against bill of entry no. 7770045 dated 27th April 2002, and declared as WSS NPK 02:50:34, was subjected to chemical tests and reported to be mono potassium phosphate with purity of 99.6%. The finding of the adjudicating authority was that these goods are separate chemically defined compound classif .....

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ding which the department intends to fasten on the goods for classification is of the phosphates of potassium. On the contrary, the heading claimed by the appellant is that that of mineral or chemical fertilizer containing two fertilizing elements, phosphorous and potassium. A further ground of appeal is that note 6 of chapter 31 of First Schedule to the Customs Tariff Act, 1975 defines the term other fertilisers to be products used as fertilizer and containing as essential constituent at least .....

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. Reliance was placed on the ratio of the decision of the Hon ble Supreme Court in Commissioner of Central Excise v. Tetragaon Chemie Pvt Ltd. [2001 (132) ELT 28] and that the test report relied upon is not conclusive whereas the test report of the earlier consignment of 2000 goods had reported the result as PK fertilizer . The failure of the adjudicating authority to take note of the registration certificate issued by the Director of Agriculture of various states, which is mandatory for sale of .....

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ecifications of fertilizer under the order issued by the Central Government and drew attention to item no. 12 among the fortified fertilizers and item no. 3 and 12 in the list of 100% water soluble fertilizers to drive home the point that these are recognized as fertilizer by the Government of India. The National Import Data Base data for the period from November 2012 to April 2013 furnished by the appellant was indicative of the imports of NPK under the heading 31.05 at other custom gateways. R .....

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Prilled and to be used as fertilizer. We find that Potassium Nitrate of Grade 13-0-45 Prilled has been mentioned in the Fertilizer (Control) Order. This fact establishes that the goods imported by the appellant are essential fertilizer and not Potassium Nitrate simpliciter, as a separately defined chemical compound. We may here observe that the prime factor required to be decided is as to whether the goods imported by the appellants are Potassium Nitrate in the shape of separate chemically defin .....

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e appellants are not Potassium Nitrate as a separate chemically defined compound, but are fertilizer, as evident from the various evidences produced and discussed. Accordingly, we hold that the Potassium Nitrate Grade 13-0-45 Prilled imported by the appellant, is properly classifiable under Chapter 31. 6.4. In arriving at the above conclusion, we have also taken note of various Notifications issued by the Government of India laying down the effective rate of duty in respect of Potassium Nitrate .....

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lant. 4. Relying on the decision of the Hon ble Supreme Court in Commissioner of Central Excise, Bangalore v. Karnataka Agro Chemicals [2008 (227) ELT 12 (SC)] the inappropriateness of invoking the extended period as expressed in the judgment was highlighted 27. On the question of invocation of extended period of limitation, we are in agreement with the view expressed by the Tribunal that the larger period of limitation was not invokable by the Department. As stated above, three Circulars have b .....

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ation under Section 11A of the Central Excise Act, 1944 [See: Padmini Products v. Collector of Central Excise - 1989 (43) ELT 195 (SC) ]. Therefore, in the present case, there is no warrant to invoke larger period of limitation or to impose penalty and to that extent we uphold the order of the Tribunal. 5. Learned Authorised Representative drew our attention to Circular no. 44/2001-Customs dated 6th August 2001 of Central Board of Excise and Customs: 3. Keeping in view the provisions explained a .....

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es to heading 28.34 and potassium phosphate finds a mention in heading 28.35 itself. and relied upon the HSN Explanatory Notes to chapter 28 as well as the decisions of the Tribunal in Commissioner of Customs (Import), Mumbai v. Pioneer Agritechoscan [2007 (210) ELT 680 (Tri.Mumbai)] and Collector of Central Excise, Bhubaneshwar v. Indian Organics [1996 (88) ELT 680 (Tribunal)]. 6. Having heard both the sides, we find that the dispute lies within the narrow compass of ascertaining whether the im .....

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ding does not include other chemically defined compounds not specified ……. even if they could be used as fertilizers 7. We note that the adjudicating authority has relied primarily upon the tariff entries, the circular of the Central Board of Excise and Customs and a decision of this Tribunal in 2001 to exclude from the list of fertilisers such goods by describing them as separate chemically defined compounds. The adjudicating Commissioner has not discounted the contentions of the .....

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