9911796707
TMI Blog2022 (6) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... nc oxide suspension concentrate)' declared in bill of entry no. 3141559/03.11.15 as 'other fertilizer' for being subjected to rate of duty applicable for tariff item 3105 9090 of the First Schedule to Customs Tariff Act, 1975 which, upon ascertainment at the behest of the assessing officer, was reported to contain 09.9% nitrogen as fertilizing agent and 39.5% zinc as micronutrient and, thereby, necessitating classification elsewhere. 2. In the proceedings before the original authority, the claim for classification as 'other fertilizer' on the basis of exclusions from other headings in the chapter was discarded owing to the high presence of zinc as micronutrient meriting the alternative classification of tariff item 3808 9340 corresponding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd v. Collector of Central Excise [1996 (88) ELT 641 (SC)], in Hindustan Polymers Co Ltd v. Collector of Central Excise, Guntur [1999 (106) ELT 12 (SC)] and in Warner Hindustan Ltd v. Collector of Central Excise, Hyderabad [1999 (113) ELT 24 (SC)] in support of his contention that the exercise of vicarious authority to determine classification afresh should have been preceded by notice of intent. It is also pointed out that the Tribunal, in Haver Standard India P Ltd v. Commissioner of Central Excise, Vadodara [2009 (245) ELT 216 (Tri. - Ahmd.)], in Shri Krishna Keshav Laboratories Ltd v. Commissioner of Central Excise, Ahmedabad [1999 (105) ELT 117 (Tri. - Ahmd.)], in Ispat Industries Ltd v. Commissioner of Central Excise, Nagpur [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s'. With the notices proposing classification of the products as 'plant growth regulators', the proceedings against respondent fails on this count alone. ii. To the extent that these are enumerated with reference to note 2 of chapter 31, the specific compounds of nitrogen, phosphorous and potassium, even if not designated as 'fertilizer' would be classifiable in chapter 31 along any others described as 'fertilizer' except those under heading 3105, with the exception of the compound specified in note 5, and those containing any one of the three primary fertilizing elements. The notes in the chapter are not intended to restrict classification in chapter 31 when intended for use as 'fertilizer' unless specifically and deliberately excluded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not considered in these. He made further arguments on the correctness of the order of the first appellate authority by referring to circular no. 1022/10/2016- Cx dated 6th April 2016 of the Central Board of Excise and Customs restricting 'plant growth regulators' to organic compound which the impugned goods are not. 7. The decisions of the Hon'ble Supreme Court in Hindustan Ferodo Limited v. Collector of Central Excise, Bombay [1997 (89) ELT 16 (SC)] and in HPL Chemicals Ltd v. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)] afford the fundamental framework within which classification disputes are to be resolved, viz. discharge of onus by tax authorities to find fitment within the description corresponding to a headin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings therein, to seek an alternative classification. The schema of chapter 31 of First Schedule to Customs Tariff Act, 1975 is critical to this; there are two principal types: fertilizers of animal or plant origin and mineral and chemical fertilizers. Taking into account the essentiality of 'macronutrients, the latter, constituting the bulk of the headings, are grouped again as nitrogenous, phosphatic and potassic corresponding to the trio: nitrogen, phosphorus and potassium as well as in all the permutations and combinations of the three. Products in packed form are assigned special enumeration within heading 3105 of First Schedule to Customs Tariff Act, 1975 besides 'other fertilizers' as a residuary enumeration and it is on the appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The jettisoning of the permission for import by the competent authority makes that deficiency in the order of the original authority obvious. With the impugned order departing from the framework of appellate resolution, the merging of the order of the original authority within it is not a proposition that is tenable; setting aside the order of the first appellate authority may not, of itself, impact the order of the original authority. Our appellate competence is limited to the propriety and legality of the order impugned before us which, in the peculiar circumstance of the decision of the first appellate authority, does not encompass the order of the original authority within it. As the two appeals, thus far, have been of the appellant her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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