TMI Blog2000 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... 91 87,615.00 2. 22-4-1992 11/91 to 3/92 20,075.00 3. 18-9-1992 (Corrigendum dated 26-3-1993) 4/92 to 8/92 79,020.00 4. 18-3-1993 4/88 to 3/91 1,32,493.20 5. 29-3-1993 9/92 to 1/93 85,629.00 In adjudication of the SCN at Sl. No. 4 above, the Collector of Central Excise passed Order-in-Original No. 406 dated 20-12-1993 confirming the Department's classification of the product under TH. 38.08 but dropping the demand of duty on the ground of limitation. Appeal No. E/805/94-C, filed by the assessees, challenges this order of the adjudicating authority classifying the product under TH. 38.08. The SCNs at Sl. Nos. 1 to 3 and 5 above were adjudicated by the Collector as per Order-in-Original No. 205 dated 31-12-1994. While on the issue of classification ld. Collector followed his own earlier decision (vide Order dated 20-12-1993), on the question of limitation he held that the revised classification could take effect only prospectively i.e. from 5-12-1991 and, therefore, the demand of duty for periods prior to 5-12-1991 was hit by limitation. Consequently, the entire demand of duty rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ydrolysed with a special culture of bacteria, which process (also termed 'fermentation') yields a mixture of various aminoacids. When the fermentation is over, the bacteria are killed by suitable chemical method and the protein hydrolysate (fermentation extract) is mixed with seaweed extract obtained by extracting seaweed with water under high pressure. This combination of the two extracts is 'plantozyme'. The CA further submitted that, while the amino acids contained in the protein hydrolysate served as building units for synthesis of enzymes (which are proteins) which were necessary for the growth of plants, the proteins and carbohydrates present in the seaweed extract in soluble form worked as readily available food which would help plants overcome any deficiencies of proteins and carbohydrates. He relied on the Chemical Examiner's report to establish that the product contained proteins. 'Plantozyme' provided nutritional support to plants and worked as a plant growth promoter, which required to be classified as bio-fertilizer under TH 31.01. Ld. CA relied on the relevant explanatory notes under HSN heading 31.01. He further submitted that the product was not a plant growth regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturing process as explained to the Department by the assessees in their letters dated 28-6-1990 and 22-7-1991 addressed to the Central Excise Range Superintendent, and submitted that, going by such process as well as by the literature printed on the product labels, one would find that micronutrients like copper, iron and zinc were also used along with hydrolysed casein and seaweeds for manufacturing 'plantozyme' and, therefore, the product would merit classification as plant growth regulator by virtue of the presence of the micronutrients. Support to this argument was drawn from Board's Circular No. 26/90-CX. 3 which had clarified that the appropriate classification of plant growth regulator would be under TH 38.08 where the product was a heterogeneous mixture of inorganic salts of iron, copper, zinc etc. as trace elements or micronutrients. 6.Ld. CA, in his rejoinder, submitted that the case law cited by ld. DR was not applicable to the facts of the assessees' case. He added that the circular was withdrawn by the Board as per new Circular dated 21-11-1994 which clarified that micronutrients would be appropriately classifiable under TH 31.05 as "Other Fertilizers". The CA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ZYME Crop Treat Used for growth and development of field crops like Cotton, G. nut, Sesaman etc. Fruits Vegetables. Mfg. by Leeds Kem, D.50 MIDC Jalgaon 425 003 Biologycally derived Plant Growth Promoter containing Auxin precursors, Cytokinins Amino Acids, protein Complexes fortified with micronutrients. Derived from Natural Sources including Microbes Ocean plants. Minimum Guaranteed Analysis:- Copper Proteinate-% Cu-0.1; Manganese Proteinate-% Mn-0.2; Zinc Proteinate-% Zn-0.4; Iron Proteinate-% Fe-0.4. The above literature appears to be consistent with the method of manufacture as explained by the assessees to the Department. We note that the amino acids are products of hydrolysis of the milk protein (casein); The protein complexes have resulted from the chelation of free protein molecules with the minerals i.e., the metal ions used viz. Cu++, Fe++ etc. These complexes have also been specifically named as Copper proteinate, Iron proteinate etc. The minimum guaranteed percentages of different metals have also been shown, the total metal (Copper, Iron, Zinc, Manganese) content (minimum guaranteed) being only 1.1%. Two other ingredients named on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to supply one or more plant nutrients. The term is generally applied to manufactured material other than lime or gypsum". We have also consulted the Condensed Chemical Dictionary (Tenth Edition, Revised by Gessner G. Hawley) which explains the term fertilizer as follows : "A substance or mixture that contains one or more of the primary plant nutrients and sometimes also secondary and/or trace nutrients. The primary nutrients are nitrogen (supplied as anhydrous ammonia, or solutions containing nitrogen derived from ammonia, ammonium nitrate or urea); phosphorus (as superphosphates derived from phosphate rock); and potassium (in the form of KC1 from sylvite ore or natural brines). Secondary nutrients are calcium, magnesium, and sulfur. Trace elements (iron, copper, boron, manganese, zinc and molybdenum) are also among the twelve elements considered essential for plant growth". Regarding "nutrient", Condensed Chemical Dictionary gives the following explanation : "Any element or compound that is essential to the life and growth of plants or animals, either as such or as transformed by chemical or enzymatic reactions. In plants, nutrients include numerous mineral elements as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aweed extract contained various amino acids and trace elements (Iron, Manganese, Copper, Zinc etc). The NIO literature has not been contested before us. We would accept this evidence and hold that the product in question, containing seaweed extract, is a bio-fertilizer. 7.6Our attention was taken to letter dated 28-5-1996 issued from the Directorate of Plant Protection, Quarantine and Storage, Ministry of Agriculture, Government of India to M/s. Pralshar Bio Products Pvt. Ltd. (Goa), another manufacturer of a similar product of the same name, 'Plantozyme'. This letter, inter alia, states that the product Plantozyme is a bio-extract organic fertilizer. A certificate dated 28-5-1996 issued by the National Institute of Oceanography to the same manufacturer (Pralshar Bio Products) was also brought to our notice. It has certified 'plantozyme' of M/s. Pralshar Bio Products to be an eco-friendly organic bio-fertilizer. Both the aforesaid letter and certificate are available on record. The CA claimed that their product namely 'plantozyme' and the aforesaid product of M/s. Pralshar Bio Products were similar products. This evidence too has gone unrebutted and the same supports our finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R on the Board's circular No. 26/90-CX. 3, we observe that the said circular had dealt with a mixture of inorganic salts of iron, copper, zinc, molybdenum and manganese as micronutrients for plants. In the instant case, the Department has never had a case that the product was composed of inorganic salts of all or any of the said metals. On the other hand, it appears from the manufacturing process as well as the product-label that traces of copper, zinc, iron and manganese were present as their 'proteinates' in plantozyme crop treat. These metal proteinates, as we have learnt from Chemical Dictionary, were organometallic compounds (formed by chelation of the organic molecules viz. proteins with the metal ions) which were not at all 'salts' as understood in chemical parlance, let alone inorganic salts. The product in question was, therefore, not covered by the circular cited by ld. SDR. Even if it is assumed to the contrary, we note, the said circular of the Board was withdrawn under the Board's later circular dated 21-11-1994, which clarified that micronutrients would be appropriately classifiable as "other fertilizers" under TH 31.05. The Apex Court in the case of Ranadey Micronutr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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