TMI Blog2023 (8) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... cide. Moreover, only because the product Gronimix is made pre-dominantly by Neem, it cannot be conclusively said that because of this reason the good is fertilizer as there are pesticides/insecticides made of Neem/Neem oil. The details mentioned in the pamphlet/advertisement of the product were not considered properly. Though there are statements of dealers which states that the product is used as insecticide/pesticide but those dealers have not been cross examined as requested by the appellant. When there are evidence available in the case it becomes incumbent on the adjudicating authority to allow the cross examination of the witnesses. The adjudicating authority has seriously defied the mandatory provision of Section 9D of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted by the assessee is not correct. In this regard he placed reliance on the judgment of Hon ble Supreme Court in the case of HPL Chemicals Limited vs. Commissioner of C.Ex., Chandigarh 2006 (197) ELT 324 (SC). He submits that in the present case the classification of Neem Blended Organic Manure Gronimix the burden has not been discharged by the department. The department has relied on the following documents to state that the goods cannot be classified as fertilizer and are to be classified as pesticides: i. Content in pamphlet/advertisement of the product, ii. Statements of dealers of the Appellant taken under Section 14 of the Central Excise Act and iii. The Letter No. IQ/QC/V/NOC/22948/06 dated 19.12.2006 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h states that Neem Blended Organic Manure is not included in the Fertilizer (Control) Amendment Order, 2006. He submits that the notification under the Fertilizer (Control) Amendment Order,2006 is not a pre-condition for classification of the Gronimix as Fertilizers under CETH 31010099 as per perusal of the tariff heading. He placed reliance on the board circular No. 392/25/1998-CX dated 19.05.1998. He also placed reliance on this Tribunal decision in the case of Sree Ramcides P. Ltd Vs. CCE ST., Tirchirapalli 2016 (337) ELT 412 (Tri. Chennai). 2.4 He also submits that the impugned order relying on the definition from Wikipedia is also not acceptable. He submits that as per the composition of ingredients of Gronimix which itself sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta Vs. Calcutta Springs Ltd 2008 (229) ELT 161 (SC) 2.5 He further submits that as per the test report from the Pesticide Residue Laboratory and the Institute of Pesticide Formulation Technology (a Government of India Society under the Department of Chemicals Petrochemicals) the product Gronimix does not have Pesticides . He further submits that the department did not bring anything significant on record to prove that the product is classifiable as pesticide. The test report was ignored by the department which is not permissible as per the following judgments:- B.G Plywood India (P) Ltd vs. Commissioner of Central Excise 2001 (96) E.C.R 709(Tri.- Chennai) Adani Wilmar Limited Vs. Commissioner of Customs, Kandla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at because of this reason the good is fertilizer as there are pesticides/insecticides made of Neem/Neem oil. On the other hand, we find that the adjudicating authority has ignored so many vital material relied upon by the appellant such as the department has not discharged the burden which is required in the matter of classification. The details mentioned in the pamphlet/advertisement of the product were not considered properly. Though there are statements of dealers which states that the product is used as insecticide/pesticide but those dealers have not been cross examined as requested by the appellant. In our view when there are evidence available in the case it becomes incumbent on the adjudicating authority to allow the cross examina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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