TaxTMI 
TaxTMI 
2014 (5) TMI 1094
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....Cross Road, Sewri (W), Mumbai - 400 015. 4. 371/16/DBK/14-RA MUM - CUSTM - AXP - APP - 300 & 301/13-14 dated 11-11-2013 M/s. Reliable Trading Co., GIDC, Plot no. 813, Veraval, Gujarat - 362265. 5. 371/17/DBK/14-RA MUM - CUSTM - AXP - APP - 286 & 287/ 13- 14 dated 11-11-2013 M/s. Khizar Exports, Sewri Cross Road, Nr. Sewri Rly. Station, Mumbai - 400015. 6. 371/18/DBK/14-RA MUM - CUSTM - AXP - APP - 302 & 303 / 13 - 14 dated 11-11-2013 M/s. National Sea Food Corporation, Sewri Cross Road, Sewri (W), Mumbai - 400013. 7. 371/19/DBK/14-RA MUM - CUSTM - AXP - APP -292 & 293/ 13 - 14 dated 11-11-2013 M/s. SKF Exports, Sewri Cross Road, Sewri (W), Mumbai - 400 015 8. 371/20/DBK/14-RA MUM - CUSTM - AXP - APP - 288 & 289 / 13 - 14 dated 11-11-.2013 M/s. Global Impex Trading, 36/3 Haji Jumma Compound, Sewri Cross Road, Sewri (W), Mumbai - 400015. 9. 371/21/DBK/14-RA MUM - CUSTM - AXP - APP - 298 & 299/ 13 - 14 dated 11-11-2013 M/s. Rehmania Sea Food, Sea Breeze Apartment, Gr, Floor, Koliwada, Vasai West, Dist : Thana 10. 371/22/DBK/14-RA MUM - CUSTM - AXP - APP - 290 & 291/13-14 dated 11-11-2013 M/s. Star Mari....
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....ng fish fillets and other fish meat of heading 0304 0304 : Fish fillets and other fish meat (whether or not minced), fresh, chilled or frozen 030401 In fresh chilled form 030402 In frozen form 0305 : Fish, dried, salted or in brine; smoked fish, whether or not cooked before or during the smoking process; flours, meals and pellets, of fish fit for human consumption. 2.4 For the purpose of claim under DEPB the classification of the export product was not material. However, for claims under Drawback the classification and description are important factors and as such items need to be products of Chapter 03 only. As mentioned above Fish Maws has been classified under various Tariff Items of Chapter 03 for claim of drawback. 2.5 As per the Finance Bill 2011-12 certain changes have been made in the Customs Tariff. The first Schedule to the Customs Tariff Act was amended as on 1st January, 2012. The following amendments were made applicable in Chapter Heading 0305. A new classification has been included for fish fins, heads, tails, maws etc. - Smoked fish, including fillets changed to :- Smoke....
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....been added from this date (1-1-2012). The tariff item 'Fish Maws' and 'Shark fins' being offal/waste, would therefore effectively be classified upto 31-12-2011 under tariff item 05119130 i.e. as 'other fish waste' and after 1-1-2012 under tariff item 03057200. 2.8 The applicants were issued demand-cum-show cause notices asking them to deposit "excess" drawback on the ground of wrongly classifying the products under SS No. 0305 attracting drawback @ 2% at the material time instead of the correct Drawback SS No. 0511 attracting 1% drawback. The said entry referred in the said Notice under Chapter 5 which reads "Products of Animal Origin Not elsewhere specified or included and specifically SS No. 0511 which reads : "0511 Animal products not elsewhere specified Or included; dead animals of chapter 1 or 3, Unfit for human consumption" 2.9 After following the due process of law, the Deputy Commissioner vide impugned orders-in-original confirmed the recovery of excess drawback along with interest. 3. Being aggrieved by the impugned orders-in-original, applicants filed appeals before Commissioner (Appeals) who rejected the same. 4. Being aggrie....
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....Argument of the Commissioner is therefore without factual or legal basis. 4.4 The Commissioner has failed to appreciate that the duty drawback schedule is aligned with the First Schedule of the Customs Tariff Act 1975 at the four digit level only. Reference Note 1 to Notification No. 92/2012-Cus. (N.T.) dated 4-10-2012 (earlier Notification No. 68/2011-Cus. (N.T.), dated 22-9-2011). Therefore, without prejudice to the aforesaid arguments, the amendment to the first schedule of the Customs Tariff Act 1975 at the Six digit level only by insertion of entry 03057200 in the Customs Tariff vide fifth schedule to the Finance Act 2011 has no application to the duty drawback schedule which remained unchanged. The impugned order is therefore without factual or legal basis and is therefore liable to be set aside on this ground also. 4.5 The Commissioner has attempted to find fault in the specific clarification viz. : Clarification letter issued by the Asst. Commissioner of Customs, ACC, Ahmedabad Ref VIII/48-573/ACC 2011, dated 29-3-2011 wherein it was clarified that fish maws were correctly classifiable under 0305. In fact contrary to what the Commissioner observes, the Assis....
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.... had been classifying the fish maw under drawback schedule Sr. No. 0305 and claiming duty drawback @ 2%. Government notes that the Fish Maws is a bladder/part of fish which is fit for human consumption as the same is used in Chinese food preparations. The chapter-3 of drawback schedule covers fish and crustaceans, Molluses and other Aquatic Invertebrates whereas chapter-5 covers products of Animal organ not elsewhere specified or included. Since the fish/fish maws specifically covered in chapter-3, its classification is to be considered in chapter-3 itself. Department has classified the fish maws in Sr. No. 0511 which reads as - Animal products not elsewhere specified or included; dead animals of chapter-1 or 3, unfit for human consumption. The said heading covers animal products not specified elsewhere and are unfit for human consumption. Fish maws is a fish dried product and fit for human consumption and therefore it cannot be classified in Sr. No. 0511. 8.1 Department has relied upon HSN explanatory notes for Custom tariff heading 0511. In this regard, Government observes that vide Finance Act 2011 w.e.f. 1-1-2012, the CTH 0305 has been amended and Tariff item 0305 71 00....