TMI Blog2020 (6) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... atter in the range of 85% and therefore, it cannot be classified under 1504 as oil - We find that there is no reference to the percentage of unsaponifiable matter with respect to the classification under heading 1504. Even going by the principles of ejusdem generis‟ or Noscitur a sociis‟, the impugned goods being of animal origin are rightly classifiable under Chapter 1504. The test reports give a fair idea of the nature and characteristics of the product. In the instant case, CIFT and Customs Laboratories have reported that the impugned product is fish oil. Therefore, we find that it cannot be classified under Chapter 2901 as saturated or unsaturated acyclic hydrocarbons along with ethylene, propene, butene, acetylene, heptene etc. It is of a great common sense that any organic matter would contain hydrocarbons and for that very reason, it cannot be classified under the heading applicable to hydrocarbons. If such an approach is taken entire Customs Tariff as far as it deals with living beings, goods or plant or animal origin would become redundant. Moreover, there is no reason as to why a report given by a professional institute such as CIFT and accredited laborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy. On an appeal preferred by the appellants, CESTAT, vide Final Order No.21933-21934/2018 dated 27/12/2018, remanded the issue back to the adjudicating authority for getting the goods retested at an institution having expertise in oceanography. However, on a similar order passed in respect of similarly placed importer i.e., M/s. Asha Biochem, department has filed a ROM in appeal No. C/21347/2018-DB. This Bench vide Final Order No.21933-21934/201 dated 27/12/2018 has accepted the ROM and modified the order to get the test undertaken at such institution that has expertise. As no institute was available for testing the goods, as per oceanographic parameters, the samples were again sent to CIFT who re-confirmed the test results indicated by them earlier. Customs Department in order to re-confirm the findings, of CIFT, sent the samples to Customs House Laboratory, an NABL accredited laboratory, who also confirmed the findings of the CIFT. Consequently, Commissioner passed the OIO 09/2019-20 dated 23/7/2019, in de novo confirming the classification of imported goods under CTH 1504 2090. Hence, this appeal No. 20876/2019. 2. Learned counsel for the appellants submits that Squalene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel also submits that Customs issued a letter dated 15-3-2019 stating that they are unable to find any Institutions to do the required analysis. Container Freight Station (CFS) where the Customs detained the Cargo, vide letter dated 8-4-2019, reported that they were going to close down the unit and therefore the Appellant was directed to remove the Cargo without further delay. Customs notified the appellant on 28-5-2019 that they had conducted the analysis. In the said report, it is clearly indicated that the unsaponfiable matter in the impugned goods is 85.82%; Bureau of Indian Standards stipulates that for fish oil the Saponification value has to be in between 185-200 and the percentage of unsaponfiable matter percentage has to be 4%. From this, it is revealed that the Cargo is not Marine oil and it does not have the characteristics of the same. 6. Learned counsel also submits that the Appellant preferred Writ Petition No. 16986/2019 for compliance of Hon'ble Tribunal Order. Hon'ble High Court, vide interim order dated 15-7-2019, directed the Customs to pass an order within 3 days. Commissioner passed the impugned order on 23-7-2019. Commissioner passed the very sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, in the presence of Customs brokers, it was observed that the content is light yellow liquid, of bad fishy smell packed in metal drums; samples were drawn from the consignment and sent to the CIFT (Central Institute of Fisheries Technology), Cochin, who vide Certificate dated 6/4/2018, stated that the oil received for inspection falls under the category of Fats and Oil and their fractions, of fish or marine mammals, whether or not refined, but not chemically modified ; based on the said test report, the goods under import were held to be classifiable under CTH 1504 20 90; However, when the importer did not agree with the said test report, a reference was made again to CIFT, who vide letter dated 4/5/2018, clarified that the sample analysis was done using Perkin Elmer Gas chromatograph FID equipped with a column specific for the analysis of fatty acids and hydrocarbons present in oils. 10. Learned Authorised Representative submits that consequent to CESTAT, vide final Order, No.21933-21934/2018 dated 27/12/2018, directed for re-testing the item in an institution having expertise in oceanography; as no institute was available for testing the goods as per oceanographic paramet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 15 of the Customs Tariff deals with animal or vegetable fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes. Heading 150420 is as follows: 1504 FATS AND OILS AND THEIR FRACTIONS, OF FIST OR MARINE MAMMALS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1504 10 - Fish liver oils and their fractions 1504 10 10 --- Cod liver oil --- Other 1504 10 91 ---- Squid liver oil 1504 10 99 ---- Other 1504 20 -Fats and oils and their fractions of fish, other than liver oils 1504 20 10 --- Fish body oil 1504 20 20 --- Fish lipid oil 1504 20 30 --- Sperm oil 1504 20 90 --- Other 1504 30 00 -Fats and oils and their fractions, of marine mammals As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anic chemical need not necessarily find placement in the said chapter unless in conformity with the appropriate heading and sub-heading. As the specific descriptions within the heading acyclic hydrocarbon‟, admittedly, do not find direct fitment for the imported goods, the dominance principle is resorted to by Learned Counsel for appellants. The dominance principle in rule of General Interpretative Rules applies appropriately to classification of mixtures and, in the light of assertion of Learned Counsel that the content, other than squalene‟, in the imported goods are impurities, the claim for application thereof is self-defeating. Even if the claim of the composition is to be considered on its own, the scheme of the First Schedule will have to be examined. 9. Other than with reference to specified headings or descriptions in note 1(e), which need not necessarily be chemically defined, and goods specifically excluded, the headings in chapter 29 of First Schedule to Customs Tariff Act, 1975 are intended for separately defined organic compounds‟, whether or not containing impurities. Correspondingly, there are contra exclusions of separately defined organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onifiable matter in the range of 85% and therefore, it cannot be classified under 1504 as oil. The Learned Adjudicating Authority observed that the dispute is about the classification and origin of goods that are imported and not export goods. CIFT reported that the impugned goods fish oil rich in Squalene and therefore, goods cannot be considered as Squalene. We find that there is no reference to the percentage of unsaponifiable matter with respect to the classification under heading 1504. Even going by the principles of ejusdem generis‟ or Noscitur a sociis‟, the impugned goods being of animal origin are rightly classifiable under Chapter 1504. 16. It has been also pointed out that the classification of the goods should not be based on the test reports. Though, we accept this in principle, we find that the test reports give a fair idea of the nature and characteristics of the product. In the instant case, CIFT and Customs Laboratories have reported that the impugned product is fish oil. Therefore, we find that it cannot be classified under Chapter 2901 as saturated or unsaturated acyclic hydrocarbons along with ethylene, propene, butene, acetylene, heptene etc. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods had been imported in terms of the licence, and what duty of Customs, if any, is leviable thereon. If aggrieved, the petitioner has remedy under the Act by way of appeal. In this view of the matter also, we do not wish to go into the merit of the controversy as any observation made by us may prejudice the case of either of the parties. We will, therefore, dismiss the petition. In view of the above, we find that the clarification issued by DGFT is of no consequence. Moreover, in the present issue, the clarification is not even issued in the case of the appellants. 18. We also find that the appellants have taken the plea that they have been importing the impugned products over the years and the classification of the same was being accepted by the Customs authorities. We find that there is no estoppel in revenue matters and Customs are not bound by any contradiction taken in the past owing to different set of circumstances and facts of the case. More so, as observed by this Tribunal in the order referred to above, it behooves the administration of India, as a responsible constituent of the polity of nations comprising of responsible humanity, not to be a willing access ..... X X X X Extracts X X X X X X X X Extracts X X X X
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