TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 247
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....-heading No. Description of goods Standard Rate Additional duty rate Condition No. 20. 2309.90 Prawn feed 5% - - The Order-in-Original reasoned: "Thus from the above, it is unambiguously clear that item under import cannot be considered as 'Prawn Feed' to claim the benefit under notification no. 20/99. In this regard the importers, have relied upon Hon'ble Supreme Court judgment in Sun Export Case [1997 (93) ELT 641 (Supreme Court)] wherein it was held that Animal Food supplement such as Premix of AD3 (Feed Grade) which are generally added to animal feed are also covered by the generic term 'Animal Feed'. I have carefully gone through the above referred judgment of Hon'ble Supreme Court. The dispute in this case was whether goods such as pre-mixed Vitamin AD3 etc. are Animal Feed are classifiable under Chapter 23 and thus eligible for exemption under Notification 234/82. The Hon'ble Supreme Court in very clear terms has laid down that animal feed supplement or animal feed concentrate are covered by the generic term 'Animal Feed' and thus are eligible for exemption under notification 234/82-CE. In view of above decisions....
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....s in the manner indicated above." Against the said order, an appeal filed to the Commissioner of Customs was successful and the Commissioner of Customs relying upon the decision in 'Sun Export Corporation, Bombay v. Collector of Customs, Bombay, and Another' [1997 (6) SCC 564] allowed the appeal in favour of the assessee. The Department carried a further appeal to Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') which by the impugned judgment dated 05.12.2005 dismissed the Department's appeal also relying upon the self same judgment. Shri Yashank Adhyaru, learned senior counsel appearing on behalf of the Revenue, relied upon a later two Judges Bench judgment of this Court in 'Collector of Central Excise, Guntur v. Surendra Cotton Oil Mills & Fert.Co. [2001 (127) ELT 3 (SC)] in which the earlier three Judge Bench judgment in Sun Export Corporation's case was referred to and distinguished as follows: - "7. The situation however, is not the same in the instant matter. In the case of Sun Exports Corporation (supra), it was 'animal feed' and 'animal feed supplements' and by reason of the exemption ....
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....ll as a subsequent decision of the Tribunal itself in CCE v. Punjab Bone Mills [1988 (38) E.L.T. 389 (Tribunal) (Appeal No. 615/85-C with E/Cros/64/1988-C)] for coming to a conclusion that the goods imported by the appellants are eligible for exemption under Notification No. 234/82. However, this view was the minority view and, therefore, the exemption claimed by the appellant was denied. The majority view, it appears, was influenced by the fact that a decision of the Tribunal in Aries Agro-Vet Industries (P) Ltd. v. CCE [1984 (16)E.L.T. 467 (Tribunal)] taking a similar view, was challenged by filing Civil Appeal No. 17 of 1984 and that was dismissed at the admission stage. It must be noted that presumably the amendment to Exemption Notification No. 234/82 by a subsequent Notification No. 6/84-C.E., dated 15-2-1984 was not before the Court for consideration. The majority view also failed to take note of the subsequent amendment to the main exemption notification as well as the effect of the amendment as noticed by the Bombay High Court in Glindia Ltd. Case [1988 (36) E.L.T. 479 (Bom.)]. Since we have already extracted in extenso the decision of the Bombay High Court, we do not thin....
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....ment, the exemption Notification read as follows: - "9. The relevant Exemption Notification No. 234/82 dated 1-11-1982 read as follows: Exemption to certain specified goods. - In exercise of the powers conferred by sub-rule (I) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 104/82-Central Excise, dated the 28th February, 1982, the Central Government hereby exempts goods of the description specified in the Schedule hereto annexed and falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from the whole of the duty of excise leviable thereon under Section 3 of the said Act. * * * 10. Animal feed including compound livestock feed." This notification was later amended to include animal feed supplements and animal feed concentrates. On a reading of the fact situation in that judgment, it is clear that it was only the earlier Notification within which the assessee had to fit his case. This court in arriving at the conclusion that the assessee must succeed held: - "12. Now, the question is whether the "animal....
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....lude not only that food which is supplied to domestic animals or birds as an essential ration for the maintenance of life but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes such as for reproduction, for production of milk, eggs, meat, etc., or for efficient output of work. The same reasoning would apply to the present case also. These products are also fed to animals or poultry to give them better nourishment. They would, therefore, qualify as 'animal feeds'. It was submitted by the respondents that the subsequent amendment expressly refers to 'animal feed supplements'. This suggests that animal feed supplements were not previously included in the exemption notification. This reasoning must be rejected. The amendment appears to be clarificatory in nature. For example, the amendment now expressly refers also to animal feed concentrates which were not expressly referred to earlier. It cannot be said that animal feed concentrates are not animal feed. In the same manner products which supplement animal feed and are generally added to animal feed are also covered by the generic term '....