TMI Blog2024 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... en able to place any evidence to substantiate the ingredients of the Fish Lipid Oil Capsules imported by them. There has been no dispute on classification by the department for subsequent consignments in regard to assessment and classifying the goods under CTH 15042020 has been accepted by the Department. Taking note of these submissions, the matter has to be remanded to the adjudicating authority to consider the issue of classification after giving opportunity to the appellant to produce documents / evidence, if necessary. It also requires to be stated that the Chapter Heading 21069099 refers to 'Other which a residual entry of Chapter Heading 2106 which includes 'Food Preparations not elsewhere specified or included'. The matter is remanded to the Commissioner (Appeals) to reconsider the issue of classification and the eligibility of refund - appeal allowed by way of remand. - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Ms. T. Shrayashree, Advocate For the Appellant Ms. Anandalakshmi Ganeshram, Assistant Commissioner (A.R) For the Respondent ORDER The issue involved in all these appeals being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also for revision of the duty of Customs accordingly. After hearing, the Commissioner (Appeals) vide order impugned herein rejected the appeal on the ground that the appeal is filed beyond the period of limitation and also that the goods classified as Food Supplement under CTH 2106 is correct and are not to be classified as Fish Oil under CTH 1504. It was also observed that the appellant has not proved that the imported goods would meet the EXIM Policy conditions prescribed for import of goods classified under CTH 1504. Aggrieved by such order, the appellant is now before the Tribunal. 7. Ld. Counsel Ms. T. Shrayashree appeared and argued for the appellant. The details of the Bills of Entry and the differential duty paid in excess by the appellant is given as under : Bill of Entry Differential Duty No.6944499 dt. 19.02.2020 11,13,738 No.6958115 dt. 20.02.2020 4,19,997 No.6969704 dt. 21.02.2020 9,60,966 Ld. Counsel made the following submissions : I. The Appeal filed is not time-barred: 7.1 It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage Mr. Sanghi pointed out that in certain Bill of Entry of Dunlop India Limited, their Agents, Messrs Mackinnon, Mackenzie Co., Private Ltd., gave the I.C.T. Item No. 87 with regard to the imported V.P. Laitex. This, according to Mr. Sanghi, clearly shows how the appellants themselves have understood the matter. There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the Customs, the appellant Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by counsel. The question is of general importance and must be decided on its merits. Further, reliance is also placed on the case of Reliance Jio Infocomm Ltd. v. Commissioner of Customs (Import), 2021 (10) TMI 392 CESTAT MUMBAI. 7.6 It is also submitted that it is not without reason that the Appellant is claiming change of classification. It is submitted that the right classification for the products im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - M/s. Bharat Forge Press Industries Private Limited v. CCE,1990 (1) TMI 70 - SUPREME COURT - Metals Ferro Alloys Ltd., Cuttack v. Collector of Central Excise, Bhubaneshwar, 1991 Supp (1) SCC 125 - Mauri Yeast India Pvt. Limited vs. State of Uttar Pradesh, (2008) 5 SCC 680 - M/s. Aalayam Traders v. The Appellate Assistant Commissioner (CT), Puducherry, 2019 (7) TMI 1670 MADRAS HIGH COURT - Commissioner of Customs (Import) Mumbai-I v. Abbott Health Care Pvt. Ltd. 2015 (328) E.L.T. 129 (Tri. Mumbai) 10. Further, in support of the submission that specific heading is to be preferred over general heading, reliance is placed on the case of HPL Chemicals Ltd. v. CCE, Chandigarh, 2006 (4) TMI 1 - SUPREME COURT. IV. The reasoning recorded by the Commissioner (Appeals) for rejecting the change in classification are not sustainable: 11. The reasoning provided in the impugned Order for rejecting the classification under CTH 1504 20 20 is not sustainable as: On description in FSSAI NOC and Bill of Entry: 11.1 Mere mention of Food Supplement in the description in Bill of Entry or FSSAI is not decisive of the classification of the product. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NEW DELHI, wherein it has been held that HS Committee opinion is binding on Indian authorities and the foreign cases which are rendered following such HS Committee opinions are also applicable and have good force. In the said case, decision of South Africa Court was considered. 15. Further, in Commissioner of Customs, New Delhi v. C-Net Communication (l) Pvt. Ltd., 2007 (9) TMI 15 SUPREME COURT, the Hon ble Supreme Court took into consideration decision of a Canadian Tribunal while arriving at a conclusion to the issue of classification. 16. Therefore, it is submitted that the above opinion of the HS Committee and Customs Commercial Rulings Division of the United States of America shall be applicable here. On compliance with import conditions: 17. The Appellant submits that the compliance parameters or conditions laid down under the Import Policy, which are required for ensuring Free import does not have any bearing on the question of classification of the Goods imported. It is pertinent to submit that even if the Fish Oil imported does not meet the import policy condition applicable for CTH 1504, it will not change the classification of the Fish Oil, which contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry by declaring the classification as CTH 21069099. Thereafter, as the appellant entertained a view that the goods are correctly classifiable under CTH 15042020, they have filed appeal against the self-assessment before the Commissioner (Appeals). Before proceeding to discuss the issue on classification, it would be beneficial to note the relevant chapter headings: Tariff Item Description of Goods Unit Rate of duty Standard Preferential Areas (1) (2) (3) (4) (5) 1504 FATS AND OILS AND THEIR FRACTIONS, OF FISH OR MARINE MAMMALS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1504 10 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es protein substances kg. 40% - 2106 90 - Other: --- Soft drink concentrates: 2106 90 11 ---- Sharbat kg. 150% - 2106 90 19 ---- Other kg. 150% - 2106 90 20 --- Pan masala kg. 150% 2106 90 30 --- Betel nut product known as Supari Kg. 150% - 2106 90 40 --- Sugar-syryps containing added flabvouring or colouring matter, not elsewhere specified or included; lactose syryp; glucose syrup and malto dextrin syrup kg. 150% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected is by rejecting the request for change of classification of the goods. The appellant had classified the goods in the Bills of Entry as 21069099 as Food Supplement . They had also produced No Objection Certificate issued by the Food Safety and Standards Authority of India (FSSAI). It is observed by the Commissioner (Appeals) that in these certificates the goods are noted as Food Supplements and therefore goods have to be considered as Food Supplements only and would fall under CTH 2106. It is also observed that the appellant has not satisfied the parameters as per Exim Policy condition (5) in case of import of fish oil which falls under CTH 1504 and therefore goods cannot be classified under CTH 15042020. 28. On perusal of the impugned order, we find that the Commissioner (Appeals) has referred to the NOC issued by Food Safety and Standards Authority of India. A decision on classification cannot be made merely because the goods are mentioned by the said Authority as Food Supplement in these documents. We do not find any discussion made by the Commissioner (Appeals) as to the classification with regard to the tariff or the ingredients of the goods imported. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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