Food grade classification for imported STPP defeated anti-dumping duty, confiscation and penalties where Revenue failed to prove non-food grade status.

Anti-dumping duty under Section 9A of the Customs Tariff Act applied only to Sodium Tri-Poly Phosphate that was not food grade. The samples were examined by an FSSAI-approved laboratory, which found compliance with the tested parameters, and the FSSAI granted an NOC confirming conformity with the Food Safety and Standards Act, 2006. The customs report did not conclusively show that the goods were industrial or technical grade, and the private laboratory witness acknowledged overlap in parameters and the absence of a distinct conclusive test for food grade. As the burden lay on the Revenue to prove non-food grade character, and that burden was not discharged by cogent and admissible evidence, anti-dumping duty, confiscation, and penalties could not survive.

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Issues: Whether the imported Sodium Tri-Poly Phosphate was established to be other than food grade so as to attract anti-dumping duty, confiscation and penalties.

Analysis: Anti-dumping duty under Section 9A of the Customs Tariff Act, 1975 applied only to STPP other than food grade. The record showed that the samples were examined by an FSSAI-approved laboratory, which reported conformity with the tested parameters, and the FSSAI authority granted NOC and confirmed compliance with the Food Safety and Standards Act, 2006. Two other laboratories did not test the samples for want of facilities. The customs laboratory report did not conclusively establish that the goods were industrial or technical grade, and the opinion of the private laboratory witness itself acknowledged overlap in parameters and absence of a distinctive conclusive test for food grade. In a chargeability dispute of this nature, the burden lay on the Revenue to prove that the goods were not food grade, and that burden was not discharged by cogent and legally admissible evidence.

Conclusion: The imported goods were held to be food grade, anti-dumping duty was not leviable, and the confiscation and penalties could not survive.

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