TMI Blog2023 (10) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 20/ 2015-2020 dated 25.07.2018 and in that backdrop, the field department was sensitized and asked to exercise due diligence while clearing the import of areca nuts. Referring to the decision of the Supreme Court in M/S AYUSH BUSINESS OVERSEAS ETC. VERSUS COMMISSIONER OF CUSTOMS (CHENNAI VII) [ 2021 (3) TMI 1285 - SC ORDER] , it was stated that only the preparations of betel nuts would fall under Chapter 21 and the goods imported as boiled areca nut would merit classification under Chapter 8 of the Customs Tariff. It is not found that the said Circular, in any manner, supports the importer and, therefore, on that basis, no reliance can be placed in favour of the appellant. On examining the Advance Ruling relied upon by the Revenue in respect of the same product, i. e., Flavoured Supari classified under CTH 0802, it not only relates to identical goods and though it is in respect of a different company, M/s. Globe Impex being a proprietorship company owned by Shri Gagan Uppal and now it is a partnership company i.e., M/s. Globe Impex, however, the fact is that both the companies not only have the same 'name', M/s Globe Impex, where Shri Gagan Uppal is one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi (CAAR) regarding classification of betel nut items, whereas self-declaration in the said Bill of Entry was different from the ruling pronounced in CAAR. It was found that the appellant had claimed benefit under the Notification No.96/2008 dated 13.08.2008 providing for 100% exemption from BCD in respect of goods falling under Heading 2106, whereas the exemption benefit under the said notification in respect of the goods falling under CTH 080280 was only 60% of BCD. As M/s. Globe Impex had obtained an Advance Ruling under Section 28 H of the Customs Act, 1962 (hereinafter referred to as the Act ), the correct classification of the goods was held to be under CTH 080280. 3. In the course of enquiry the statement of Shri Gagan Uppal was recorded, wherein stated that there are two firms with the same name M/s Globe Impex having separate registration of GST, Pan cards and have different IECs. However, both are managed and controlled by Shri Gagan Uppal. He explained the process wherein the product is made after cutting the supari and adding menthol and saccharin. 4. The sample of the product was sent for testing and the report by FSSAI dated 14.07.2022 showed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on the presence of sweetening agent and that the sample is a preparation of betel nut. He seriously refuted the applicability of the Advance Ruling sought by M/s Globe Impex on the ground that the same was a different entity, i.e. the proprietorship firm and it was not in respect of the product in question. The Counsel also referred to Section 28 J to say that the Advance Ruling is not applicable as there is change in law, referring to the Circular issued after the Advance Ruling that the product in question falls under Chapter 21 and also the DRI alert circular. The learned Counsel sought to distinguish the decision of the Apex Court in Crane Betel Nut Powder Works Vs Commissioner of Customs, Tirupathi - 2007 (210) ELT 171 (SC) as the same was rendered in the context of Central Excise law and the provisions were amended in the year 2009 by including Note 6 to chapter 21 of Central Excise Tariff Act, 1985 to declare certain processes in respect of betel nut, as processes of manufacture and also amendment made in chapter 8 and hence, the judgement in the case of Crane Betel Nut (supra) is not relevant. The learned Counsel for the appellant has relied on the Circular No. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect its classification. In so far as the test reports were concerned, the majority of them indicate absence of saccharine and do not meet the standards for betel nuts as per FSSR 2011 and, therefore, the goods are liable for absolute confiscation. The Revenue also relied on the decision of the Apex Court in Crane Betel Nut Powder Works Vs. Commissioner Customs, Tirupati - 2007 (210) ELT 171 (SC), followed by the Tribunal in M/s Azam Laminators Pvt. Vs. Commissioner 2019 (367) ELT A-22 (Tribunal-Madras). On Advance Ruling obtained in respect of 'flavoured supari' classified under CTH 0802 though related to a different firm, however, the same was owned by Shri Gagan Uppal and, therefore, the principles laid down therein would also apply to the goods in question, which are identical. 9. The main issue for our consideration is whether the goods Scented Sweet Supari is classifible under CTH 2106 9030 as claimed by the importer or under CTH 08028090, as per the Department and, therefore, would be entitle to the exemption of 100% BCD by virtue of the Notification No. 96 of 2008 or is entitle to exemption to only 60% BCD by virtue of the classification by the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this chapter. Also the cutting / crushing / splitting of areca nuts do not change the basic character of betel nuts as these are only basic processes of enhancing the presentation and addition of flavour or sweetening of betel nuts with essential or non-essential oils, menthol, sweetening agents and do not result in any new and distinct product to be classified elsewhere. In the present case, as per the statement of Shri Gagan Uppal no further processes have been undertaken on the raw betel nuts or areca nuts apart from mere breaking / splitting /cutting them and adding menthol. 12. On the contrary, if we see the very heading of Chapter 21, it speaks of Food preparation not elsewhere specified or included , which denotes exclusion of areca nuts even if they are in the form of Flavoured Supari, from this Chapter. From Supplementary Note 2 to Chapter 21, we find that this Chapter covers Betel Nut product known as Supari which means any preparation containing betel nuts and as noticed above the process involved herein is only of breaking /cutting /splitting of areca nuts and thereafter, only menthol is added. There is no concept of preparation in the process referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 578 (S.C.) decided the issue of classification of betel nut (areca nut) 'whole' under Tariff Item 08028010 of CTA, 1975, referring to the Chapter Notes, it was observed as : 14 . From above Note 3, it can be seen that even if some stage of drying or rehydrating or treatment is done for preservation/stabilization or maintaining the appearance, as long as the nuts retain the character of dried nuts, they fall under Chapter 8. The Counsel for appellants had placed before us samples of dried whole betel nut (without husks) as well as sample of the imported goods. We were able to see that the imported goods are also whole but more dried. 15 . Ld. Counsel for appellants has referred to Chapter Note 2 of Chapter 21 to strongly contend that the goods would fall under CTH 2106 90 30. From the table reproduced earlier, it can be seen that CTH 2106 90 30 takes in the items betel nut product known as supari . To be more clear what is described therein is betel nut product and not betel nut whole as seen in Chapter 8. Chapter Note 2 of Chapter 21 also speaks about betel nut product and not betel nut whole . As per Chapter Note 2 of Chapter 21 betel nut product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 (7) of Customs Tariff Act, 1975. On the face of it, the said Circular provides for, Applicability of GST on scented sweet Supari and flavoured and coated elaichi and would, therefore, not be applicable to the issue at hand. Section 3 of CTA provides for levy of additional duty equal to excise duty, sales tax, local taxes and other charges and clause 7 thereof reads as : Section 3(7) -- Any article which is imported into India shall, in addition, be liable to integrated tax at such rate, not exceeding forty per cent. as is leviable under section 5 of the Integrated Goods and Services Tax Act, 2017 on a like article on its supply in India, on the value of the imported article as determined under sub-section (8) 9[or sub-section (8A), as the case may be . The provisions of section 3(7) of CTA does not support the case of the appellant as put forth by him and hence the applicability of the Circular No.163 /19 /2021 GST dated 6.10.2021 is not sustainable in the present case. 19. On going through the Alert Circular No. 4 of 2022 dated 25.08.2022 issued by DRI, referred to by the learned Counsel for the appellant, we find that the same has been issued to overcom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not pay the amount specified in the notice. Para 40 of the ITC Ltd. reads as :- 40. In Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) = (2005) 10 SCC 433, the Court considered unamended provision of Section 27 of the Customs Act and a similar submission was raised which was rejected by this Court observing that so long as the order of assessment stands, the duty would be payable as per that order of assessment. This Court has observed thus : 6. We are unable to accept this submission. Just such a contention has been negatived by this Court in Flock (India) case (2000) 6 SCC 650. Once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal, that order stands . So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. The officer considering a refund claim cannot sit in appeal over an assessment made by a competent officer. The officer considering the refund claim cannot also review an assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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