TaxTMI 
TaxTMI 
TaxTMI 
2018 (11) TMI 101
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....nder the purview of bio fertilizers and that as such they are not able to analyze and sent the analysis report of the same." 2. Vide letter dated 30.03.2009 National Centre for Organic Farming, Ghaziabad confirmed that the product does not confirm to any of the requirements of any bio fertilizer as per FCO; as per FCO 1985 'bio fertilizer' means a product containing carrier based (solid or liquid) living microorganisms which are agriculturally useful in terms of nitrogen fixation, phosphorous solubilization or nutrient mobilization to increase the productivity of the soil or crop. The goods imported vide Bill of Entry No. 74088 dated 06.01.2009 were seized. 3. A show-cause notice dated 20.07.2009 was issued to the appellants proposing to classify the goods imported under CTH 1302 1990; demanding differential duty of Rs. 72,37,601/- and proposing to confiscate the impugned goods while seeking to impose fine in lieu of confiscation in respect of goods imported earlier under 5 Bills of Entry. Commissioner of Customs vide order dated 15.04.2010 has confirmed the finalization of assessment of Bill of Entry No. 740088 dated 06.01.2009 classifying the product under CTH 1302 1990 as 'pla....
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....tilizer which are covered under FCO; It's also not Appellant claim that the product is a bio fertilizer under FCO; As per Shriram Institute for Industrial Research, an ISO 9001:2000 certified institute, the product is a liquid organic fertilizer containing nitrogen, phosphate, potassium and other organic of amino acids having nutritional value for the crops; certificate of analysis submitted by them also states that the imported product contains 25% organic matter and 1.5% minerals; National Centre of Organic Farming (NCOF), Ghaziabad do not dispute the appellant's submission that the product is an extract of various plants /herbs meant for use in agriculture; vide report No. 10(8)2007NCOF/3399 dated 21.05.2009, NCOF, Ghaziabad confirmed s that the product is a organic fertilizer derived from plants. 4.4 Supreme Court, in the case of O.K. Play (India) Ltd. V. CCE - 2005 (180) E.L.T. 300 (S.C), prescribed the following for determination of classification. (i) HSN along with explanatory notes provide a safe guide for interpretation of an entry. (ii) Rules of interpretation will decide preference for one heading over other (iii) Functional utility, design, shape and predominate us....
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....earing in 31.01 is more specific and includes only a subset of plant extracts which are used as fertilizer. Therefore the entry 31.01 being more specific, the product in question must be classified under 31.01. 4.10 It is submitted that under Rule 3(c) of the General Rules for the Interpretation of Import tariff, it is provided that when goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. 4.11 It is submitted that under Rule 4 of the general rules for the interpretation of Import tariff, that Goods which cannot be classified in accordance with Rule 2 or Rule 3 shall be classified under the heading appropriate to the goods to which they are most akin. Since, the impugned goods are most akin to other organic fertilizers and are organic fertilizers they are classifiable under 31.01. 4.12 The show-cause notice does not propose classification under CTH 3808 and thus classification under 3808 is out of the scope of present appeal and thus ruled out. It is to be noted that product cannot be classified under Chapter 13 and thus Order-in- Original needs to b....
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.... the exception of the following: Note: Chapter note to Chapter 38 states that it covers only chemical products and chemical related products. Dictionary Meaning 1. Illustrated Oxford Dictionary, OUP, 2003 defines fertilizer as: "A chemical or natural substance added to soil to make it more fertile" 2. Wikipedia defines fertilizer as: 'Fertilizer (or ertilizer) is any organic or inorganic material of natural or synthetic origin (other than liming materials) that is added to a soil to supply one or more plant nutrients essential to the growth of plants." 1. Merriam Webster online Dictionary defines fertilizer as; "one that fertilizes; specifically: a substance (as manure or a chemical mixture) used to make soil more fertile" Note: The fertilizers are usually natural substances used to improve the fertility of the soil by supplying nutrients. Dictionary Meaning 1. It is submitted that Kirk-Othmer "Encyclopedia of Chemical Technology" (3rd Edition - Volume 18) introduces PGRs as follows: "Plant-growth regulators, other than nutrients, usually are organic compounds. They are either natural or synthetic compounds and are applied directly to a plant to alter its life processe....
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....nder heading 3808. Since the products are natural fertilizers and are not plant growth regulators will be covered under a more specific heading 3101 in the nomenclature and they will not get covered under 3808 as plant growth regulators. 4.14 The impugned product provides nutrients to the soil to improve the fertility of soil and thereby helping overall growth of the plants. The impugned product neither affects any selective part of plants nor affects any specific structure or life processes of plants. It is therefore submitted that the impugned product falls under CTH 3101 as vegetable fertilizer. 5. Ld. Authorized Representative, for the revenue has reiterated the findings of OIO as far as the classification of impugned goods is concerned and the grounds of appeal as far as confiscability and penalty on the impugned goods are concerned. He submitted that Sri Ram institute from where the appellants have obtained test report is not a notified institution; the samples were not drawn legally and the test report was submitted after adjudication. Therefore cannot be relied upon. In view of the Chapter Note (b) the impugned goods do not fall under Chapter 31. He relied upon Weston com....
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....rtilizer. For a proper appreciation of the findings of the Commissioner, we need to have a look at the classification of the goods under Chapter 31. 31.01. Animal or vegetable fertilizers, whether or not mixed together or chemically treated; fertilizers produced by the mixing or chemical treatment of animal or vegetable products. This heading covers: (a) Animal or vegetable fertilizers, whether or not mixed together or chemically treated; (b) Animal or vegetable products converted into fertilizers by mixing together or chemical treatment (other than bone superphosphates of heading 31.03). However, these products fall in heading 31.05 when put up in the forms or packages described in that heading. The heading includes, inter alia: (1) Guano, which is an accumulation of the excreta and remains of sea birds, found in large quantities on certain islands and coasts. It is both nitrogenous and phosphatic, and is usually a yellowish powder with a strong ammoniacal odour. (2) Excreta, dung, soiled fleece waste and manure, unsuitable for use other than as fertilizers. (3) Rotted vegetable products, unsuitable for use other than as fertilizers. (4) Disintegrated guano. (5) Product....
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....zers, the classification claimed by the appellants under Chapter 31 is squarely excluded. Therefore, we find that Ld. Commissioner has a point in arriving at the conclusion that the impugned product is classifiable under CTH 13021990. The importer further contended that his previous consignments were cleared under CTH 31 and has similar goods are being cleared in other ports under same heading, the department cannot contend to classify the goods under Chapter 13. We find that there is no estoppel in taxation matters and that Revenue was well within its rights to revise the classification. The importer has raised the issue of classification under Chapter 38 vis-à-vis Chapter 31. However, as the impugned show-cause notice of the order has not raised the issue, we are not going to deal with the same. 6.4 Coming to the applicability of extended period, we find that the appellants have filed 5 Bills of Entry from 27.5.2008 to 6.1.2009. Out of which, Bill of Entry No.894541/01.07.2008 and 740088/6.1.2009 were provisionally assessed. The Revenue has taken a plea that the Bills of Entry were filed under the self-assessment regime, therefore, the onus to classify correctly was on th....