TaxTMI 
TaxTMI 
2016 (11) TMI 2
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....ant from Dubai. It appears that the importers, M/s Vardhaman Hi-Tech Agro Products and M/s Vardhaman Fertilizers & Seeds Pvt Ltd procured what they claimed to be 'fertilizers' classified under heading 3105.60 of the First Schedule to the Customs Tariff Act, 1975 and heading 3105.00 of the Schedule to the Central Excise Tariff Act, 1985. One of the consignments imported against bill of entry no. 7770045 dated 27th April 2002, and declared as WSS NPK 02:50:34, was subjected to chemical tests and reported to be 'mono potassium phosphate' with purity of 99.6%. The finding of the adjudicating authority was that these goods are separate chemically defined compound classifiable under chapter 28 and hence liable for duty. It is also held that....
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....placed on the ratio of the decision of the Hon'ble Supreme Court in Commissioner of Central Excise v. Tetragaon Chemie Pvt Ltd. [2001 (132) ELT 28] and that the test report relied upon is not conclusive whereas the test report of the earlier consignment of 2000 goods had reported the result as 'PK fertilizer'. The failure of the adjudicating authority to take note of the registration certificate issued by the Director of Agriculture of various states, which is mandatory for sale of fertilizer, has also been pointed out to us. It was also submitted that 'mono potassium phosphate' has been described as a fertilizer in the Fertiliser (Control) Order dated 12th October 1995. The sales invoices also indicate that the imported goods a....
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....sential fertilizer and not Potassium Nitrate simpliciter, as a separately defined chemical compound. We may here observe that the prime factor required to be decided is as to whether the goods imported by the appellants are Potassium Nitrate in the shape of separate chemically defined compounds or the same, by presence of Sodium and Chlorine, has been converted into a fertilizer. We agree with the submission of the learned JDR that if the Potassium Nitrate, as a separate chemically defined compound, has been imported by the appellant, then the fact that the same has been used as fertilizer will not take it away from Chapter 28 and put the same under Chapter 28 inasmuch as Chapter 28 specifically mentions Potassium Nitrate. But as already di....
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....ent. As stated above, three Circulars have been issued by the Department. Till today, the controversy regarding the classification of "micronutrient fertilizers" was not settled. There is even a conflict of views between Ministry of Finance and Ministry of Agriculture. In the circumstances, question of invoking extended period of limitation does not arise. It is well-settled that mere non-declaration is not sufficient to invoke the larger period but some positive act of suppression is required for invoking larger period of limitation under Section 11A of the Central Excise Act, 1944 [See: Padmini Products v. Collector of Central Excise - 1989 (43) ELT 195 (SC) ]. Therefore, in the present case, there is no warrant to invoke larger period of....
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....ing two fertilizing elements phosphorous and potassium. Note 1 of chapter 28 indicates that the heading of that chapter would only apply to items listed in the said note among which are separate chemically defined compound. With reference to HSN Explanatory Notes under Heading 31.05 where it is stated: "the heading does not include other chemically defined compounds not specified ....... even if they could be used as fertilizers" 7. We note that the adjudicating authority has relied primarily upon the tariff entries, the circular of the Central Board of Excise and Customs and a decision of this Tribunal in 2001 to exclude from the list of fertilisers such goods by describing them as separate chemically defined compounds. T....