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2017 (9) TMI 876

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..... in the technical literature given by the appellant, it is clearly stated that paraffin wax is used for coating so that the plant extracts and the dye do not get removed from the base material. The paraffin wax loses its identity as soon as it is coated over the sand. It is apparently a raw material in the manufacture of ABDA. Simply because it loses its identity as a wax does not make it a consumable item. As such for non-fulfilment of the condition of using goods manufactured or produced in India, the appellant-assessee is not eligible for the concession under N/N. 23/2003-CE. Extended period of limitation - Held that: - The intimation given by the appellant-assessee is categorical and specific. As such, no suppression of fact can be invoked against the appellant-assessee on this issue relating to classification of ABDA. ABDA manufactured and cleared by the appellant-assessee is correctly classifiable under Heading 31010099 - claim for exemption under N/N. 23/2003-CE, wherever duty is payable is not sustainable in view of violation of condition No.3 (i) of the notification - demand upheld only for normal period - appeal allowed - decided partly in favor of appellant. - E/ .....

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..... /40323/2013 is by the appellant-assessee with reference to their duty liability for DTA clearance and also liability to Education Cess. 7. The Ld. Counsel representing the appellant-assessee submitted on the following points : (a) The department drew sample and sent it to Regional Centre of Organic Farming, Bangalore which is coming under Ministry of Agriculture, Government of India. The Regional Director in his test report dt. 2.1.2007 categorically stated that the product is organic manure and the sample passed as per Fertilizer Control Order, 2006. The Revenue has refused to accept the finding of the Regional Director and proceeded to classify the product as Plant Growth Regulator under Chapter 38. He submitted that ABDA is a plant fertilizer which improves the productivity and yield when applied. Thus, it is not regulating plant growth. Regulator should have a function of increasing or inhibiting specified activities of the plant. The ABDA is more in the nature of fertilizer of vegetable origin as can be seen from the constituents. (b) The Revenue adopted different classification in different proceedings. The show cause notice, original authority and first appellat .....

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..... lower authorities. 9. On the appeals filed by Revenue, he submitted that the original authority relied on a decision of the Tribunal in Sarla Performance Fibres Ltd. Vs CCE Vapi 2010-TIOL-408-CESTAT-AHMEDABAD = 2010 (253) ELT 203 (Tri.-Ahmd.). The department has not accepted the said order and as such the present appeal is filed. 10. We have heard both sides and perused the appeal records. 11. As noted earlier in this order, the main issue for decision is the correct classification of ABDA manufactured by the appellant-assessee. The actual nature and constituent of the product is not in question. ABDA is manufactured using the following items : Quartz Sand (97.97%) Paraffin Wax (1.50%) Neem Extract (0.12.%) Algae (0.40%) Aada Thoda Plant Extract (0.01%) and pigments, solvents etc. for process The chemical composition of the product was subjected to test by the department. The test report dt. 2.1.2007 of Regional Director of Regional Centre of Organic Farming, Bangalore makes it clear that the impugned product contains Nitrogen 0.7%, Phosphorous 0.4%, Potassium 0.6%. The report states that the product is organic manure and the sample is passed as per FCO, .....

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..... ot product contains N, P, or K for classifying the product as micronutrients / plant growth regulators or fertilizers. In the present case, admittedly, ABDA contains all the fertilizing elements (N, P K). The impugned orders did not bring out any technical evidence to state that the impugned goods are more in the nature of regulators than general growth promoters. Admittedly, plant growth regulators has a role for controlled growth. It will include retardation also whereas if the product is containing fertilizing elements which aims to enhance growth and plentiful yield of the plant, the same cannot be called as a regulator. It will be more akin to a fertilizer. Appellant-assessee are manufacturing ABDA using plant products and sand with wax. The usage of the product is also clearly indicated as for plentiful harvest. 13. In Northern Minerals Ltd. (supra), the Tribunal, relying on the product literature which indicated the use as plant growth promoter , held the product to be classified as Bio-fertilizer . The Tribunal examined the scope of application of plant growth regulators and also fertilizers. The Tribunal held that plant growth promoter cannot be considered synonymous .....

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..... the appellant-assessee is not eligible for the concession under Notification No.23/2003-CE. 15. Regarding calculation of correct amount of cess payable on the goods cleared by the appellant-assessee to DTA, we note that the original authority in order dt. 30.03.2010 held that once the education cess is added to the customs duty to arrive at aggregate of customs duties, the question of charging education cess again does not arise. He relied on the decision of the Tribunal in Sarla Performance Fibres Ltd. (supra). We note that the Revenue in the appeal contended that they are filing an appeal against the said order and hence contested the findings of the original authority. We note that the said decision of the Tribunal has been affirmed by the Hon ble Supreme Court in Meghmani Dyes and Intermediates Ltd. 2014 (307) ELT A79 (SC). As such, we find, the appellant s additional liability on education cess as demanded is not sustainable. 16. The final point for decision is whether the demands wherever raised invoking extended period are barred by limitation or not. Admittedly, the appellant addressed a letter dt. 1.8.2005 to the jurisdictional Deputy Commissioner clearly stating th .....

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