TMI Blog2023 (5) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... of classification. Though the adjudication orders appear to have suggested that the imported goods are not the final product for human consumption and, yet, as intermediary for manufacture of food supplements to be treated as food preparations, there is no finding that the goods are not probiotic cultures or that, being cultures and not probiotics per se, are disentitled to the benefit of concessional rate of duty sought in the bills of entry. The issue of whether the goods are probiotics or not is, thus, not relevant to the proceedings. In the normal course, such deficiency in adjudication proceedings would be remedied by remand for fresh determination. That, however, would be mere academic exercise, in circumstances of the claim that impugned goods are probotic cultures , for not having been disputed in the show cause notices and the appropriate tariff item within which probiotic falls having been established by the exemption notification issued under Customs Act, 1962 - Though Learned Authorized Representative did try to fill the gaps by conjecturing upon the description in the invoice and by relying upon technical material to urge that the impugned goods do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng probiotic properties, since 2015 by declaring the same classification and availing the benefit of the said notifications and that the imported goods are further processed by manufacturers of probiotic food products. In these appeals, it is their contention that the classification adopted by the adjudication authority is inappropriate as the impugned goods do not match the description corresponding to tariff item 2106 9099 of First Schedule to Customs Tariff Act, 1975. Though the proximate grievance of the appellant is the recovery of differential duty arising from denial of concessional rate extended by the notifications claimed by them, the manner in which the customs authorities have approached the dispute warrants narration of its contours before the rival submissions are taken up for evaluation. 3. The two notifications, issued under section 25 of Customs Act, 1962 for the period prior to 1st July 2017 and the period thereafter, enable clearance of probiotics covered by tariff item 3002 9030 of First Schedule to Customs Tariff Act, 1975 at concessional duty of 5% ad valorem; the description cultures of micro-organisms (excluding yeast) corresponding to the said the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstances but also not any of the goods specified within, including diabetic foods and sterilised or pasteurised millstone within the residual others therein. 4. Considered in the factual matrix supra, the case of the customs authorities is that the imported goods are not probiotics which would, doubtlessly, not be edible preparations at all but food preparation of some indeterminate composition. It is on this finding that the claim for benefit of the concessional rate of duty has been denied. 5. Learned Counsel for the appellant has drawn attention to the decision of the Hon ble Supreme Court in HPL Chemicals Ltd v. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)] and to the General Rules for the Interpretation of this Schedule in Customs Tariff Act, 1975 to discredit the finding of the adjudicating authority. According to him, the decision supra of the Hon ble Supreme Court which squarely places the onus thus 30. It has been held by this Court in number of judgments that burden of proof is on the Revenue in the matter of classification. In Union of India and Others v. Garware Nylons Limited and Others - 1996 (10) SCC 413, in Para 15 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority on the descriptions of the two chapters in First Schedule to Customs Tariff Act, 1975 runs counter to the mandate in the General Rules for the Interpretation requiring the classification to be determined in terms of headings. 6. We are, thus, able to narrow down the scope of resolution of this dispute to the demonstrated appropriateness of describing the imported goods as food preparation and the stage for comparison with the declared classification to determine more suited description of the two thereafter. Accordingly, we turn to the adjudication order for ascertainment for, while the eligibility for the concessional rate will be determined by conformity to being probiotics , such comparative evaluation which will be necessitated only upon only upon determination, by default, of classification of the goods as declared by the appellant and subject to the adjudication order having delved into the nature of the imported goods. Having determined an alternative classification which does not permit contemplation of any concessional rate of duty, we may, here itself, conclude that the determination of conformity with the description in the said notifications does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions of Learned Authorized Representative on the proper classification of probiotics whether as food supplement or ingredient for manufacture of food supplement, the intent of law insofar as classification of probiotic within heading 3002 of First Schedule to Customs Tariff Act, 1975 is beyond question as the notification cited by the appellant unambiguously deem it to be so. No amount of argument or depth of research can move probiotics or, for that matter, cultures of micro-organisms (excluding yeast) to chapter 21 as proposed by the show cause notices. 10. It, therefore, only remains to be seen if any finding of the adjudicating authority permits such re-classification within the restraining framework supra and in conformity with the rules of engagement for alteration of classification as decided by the Hon ble Supreme Court in re HPL Chemicals Ltd. The impugned orders have held, and ignoring the lack of any allegation on the description of imported goods as detailed in the bills of entry, that the goods are ingredients intended for use in manufacture of food supplements and such goods find acceptability within chapter 30 only to the extent that these are intr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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