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TMI Blog2023 (6) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... taken up the matter before the Commissioner (Appeals) who vide Order in Appeal C. Cus. No. 664/2013 dated 4.4.2013 and Order in Appeal C. Cus. No. 846 to 849/2013 dated 20.6.2013 (impugned orders) confirmed the orders of the lower authorities. Aggrieved by the impugned orders, the appellants are before the Tribunal. 1.1 No cross-objections have been filed by the department. 2. We have heard Shri B.V. Kumar, learned counsel for M/s. Avanti Feeds Ltd. and Shri Rohan Muralidharan, learned counsel for M/s. Godrej Agrovet Ltd. We have also heard Shri R. Rajaraman and Shri S. Balakumar, learned Assistant Commissioners (AR) for the department. 3. The learned counsel Shri B.V. Kumar for M/s Avanti Feeds Ltd. has stated that the department has relied upon the test report dated 22.1.2010 which did not pertain to them. Further, the copy of the said report was also not given to the appellant. This amounts to gross violation of principles of natural justice. He stated that the appellant submits that squid liver powder is manufactured from the Viscera, Skin and Eyes of squid which belongs to the family of Cephalopods of Phylum molluscs. The viscera of squid is ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the manufacture of prawn / shrimp feed falling under Chapter Heading 2309 9031 of Customs Tariff Act, 1975. They cannot hence be classified under Heading 2309 of CTA and are correctly classifiable under Heading 2301 2011. Based upon the predominant composition, is also classifiable based upon the essential characteristics under CTH 2301. They had mistakenly classified some of their earlier consignments under CTH 230990. He hence prayed that the goods be classified under CTH 2301 2011 and the impugned order may be quashed. 4. Shri Rohan Muralidharan, learned counsel appearing on behalf of M/s. Godrej Agrovet Ltd. has stated that is an ingredient in the shrimp feed manufactured by the appellants. The squid liver powder is obtained by processing the internal organs of the squid. Squid falls under the category of Molluscs. The main ingredients of the squid liver powder are squid waste and feed grade soya bean meal. The manufacturing process of involves the following steps:- a. removal of oil from the squid liver / internal organs b. the material obtained after removal of oil, which is fluidic in nature, is mixed with soya bean meal and evaporated c. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants. 7. We find that for a better understanding of the issue, it would be essential to extract relevant portion of the Customs Tariff entry pertaining to 'squid liver powder' as referred to by both the parties to the dispute. CHAPTER 23 Residues and waste from the food industries; prepared animal fodder NOTE : Heading 2309 includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing. Sub-heading Note: For the purposes of sub-heading 2306 41, the expression "low erucic acid rape or colza seeds" means seeds as defined in sub-heading Note 1 to Chapter 12. Tariff Item Description of the goods Unit Rate of Duty (1) (2) (3) (4) (5) 2301 Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves 2301 10 - Flours, meals and pellets, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts which go into the manufacture of animal feeds and need not be an end product in itself. There is nothing in the Chapter Notes to suggest otherwise nor is there any exclusion removing such products from the Chapter. Hence from a plain reading of the Tariff Heading, 'squid liver powder' being a preparation used for aqua feed and all type diet for animals, is rightly classifiable under CTH 2309. 7.3 We find that CTH 230120 preferred by the appellants covers 'flours, meals and pellets, of fish or of crustaceans, molluscs or other aquatic invertebrates'. The heading does not cover products containing ingredients of plant origin. Since 'squid liver powder' contains a mix of ingredients both of molluscs and plant origin, from a plain reading of the heading, squid liver powder does not fall under the heading. 8. Both the appellants have referred to the HSN to further explain their stand. Hence the relevant portion of the HSN is extracted below. Preparations of a kind used in animal feeding. (HSN) Chapter 23 Residues and Waste from the food industries; prepared animal fodder 23.01 - Flours, meals and pellets of meat or meal offal, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n treated to such an extent that the characteristic cellular structure of the original vegetable material is no longer recognisable under a microscope. (Emphasis added) (I) SWEETENED FORAGE . . . . . . . . (II) OTHER PREPARATIONS (A) PREPARATIONS DESIGNED TO PROVIDE THE ANIMAL WITH ALL THE NUTRIENT ELEMENTS REQUIRED TO ENSURE A RATIONAL AND BALANCED DAILY DIET (COMPLETE FEEDS) The characteristic feature of these preparations is that they contain products from each of the three groups of nutrients described below : (1) " Energy " nutrients, consisting of high-carbohydrate (high-calorie) substances such as starch, sugar, cellulose, and fats, which are " burned up " by the animal organism to produce the energy necessary for life and to attain the breeders' aims. Examples of such substances include cereals, half-sugar mangolds, tallow, straw. IV-2309-2 23.09 (2) " Body-building " protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not " burned up " by the animal organism but contribute to the formation of animal tissues and of the various animal products (milk, eggs, etc.). They consist mainly of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparations consisting of several mineral substances. (b) Preparations consisting of an active substance of the type described in (1) above with a carrier, for example products of the antibiotics manufacturing process obtained by simply drying the mass, i.e. the entire contents of the fermentation vessel (essentially mycelium, the culture medium and the antibiotic). The resulting dry substance, whether or not standardised by adding organic or inorganic substances, has an antibiotic content ranging generally between 8 % and 16 % and is used as basic material in preparing, in particular, " premixes ". . . . . . . . 8.1 The appellants state that CTH 2309 covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed:- (1) to provide the animal with a rational and balanced daily diet (complete feed); (2) to achieve a suitable daily diet by supplementing the basic farmproduced feed with organic or inorganic substances (supplementary feed); or (3) for use in making complete or supplementary feeds. That in order to fall under the third category the goods should be a 'pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 40% does not detract from the fact that the product is recognized in the trade as squid liver powder. When it comes to classification of such mixtures, reliance should be placed on Rule 3(b) of General Rules of Interpretation of the Tariff (GRI) as the impugned goods are a mixture and it should be classified applying its essential character. We find that normally goods should be correctly classifiable by reference to Rule 1 alone. Only if results of this process are ambiguous and two or more Headings appear to be applicable, then Rule 3 need be applied. Hence Rule 3 of GIR shall be used only if classification under Rule 1 and 2 fail. The issue of essential character of the subject matter in question may be resorted to only if classification of a product under Rule 1 is impossible. We have earlier discussed that the squid liver powder was classifiable under CTH 2309 as 'preparations of a kind used in animal feeding' both by a plain reading of the Customs Tariff and with reference to the HSN. Hence the need for applying Rule 3(b) of GRI does not arise. 9.1 The appellant M/s Godrej Agrovet Ltd. have also stated that there cannot be a change in classification or assessment pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Elson Machines Pvt. Ltd. Vs. Collector of Central Excise - 1988 (38) ELT 571 (SC) (b) Madras Rubber Factory Ltd., Madras Vs. Superintendent of Central Excise, Madras and Others - 1986 (24) ELT 273 (Mad.) (c) Plasmac Machine Mfg. Co. Pvt. Ltd. Vs. Collector of Central Excise - 1991 (51) ELT 161 (SC) They have further referred to the following decisions stating that test reports which were not given to the appellant up to the SCN stage cannot be relied upon in the Order in Original. (a) Hindustan Fibres Ltd. Vs. CCE, Jaipur - 2009 (245) ELT 337 (Tri. De.) (b) Bee-Am Chemicals Ltd. Vs. CCE, Raigad - 2004 (167) ELT 534 (Tri. Mum.) (c) Essma Woollen Mills P. Ltd. Vs. CCE, Chandigarh - 2001 (134) ELT 262 (Tri. Del.) As discussed in para 9.1 above, we agree with the legal position that equality / precedent cannot be attributed in cases where wrong orders have been issued. Wrong decisions taken earlier cannot be binding precedents as there is no estoppel against law. Further, we have also not relied upon the test report which has been disputed by the appellant as stated in our discussion above. 11. The learned counsel appearing for M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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