TaxTMI 
TaxTMI 
2019 (11) TMI 1287
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.... Commissioner (Appeals) contending that though provision assessment was made order under Section 17 (5) of Customs Act, 1962 was not issued and therefore all the appeal were filed in time. Commissioner (Appeals) has dismissed the appeal of the appellant on merits and though holding that it was mandatory for the department under Section 17 (5) of Customs Act, 1962 to issue its speaking order, rejecting some appeals, stating that they are time-barred being filed beyond the condonable period from the date of Bill of Entry. Hence, these appeals. 2. Learned Counsel for the appellants submits that the lower adjudicating authority has not applied his mind and arrived at an erroneous decision based on a circular issued by the Ministry of Finance which is not condonable under law; the material purchased and used by the appellants for poultry feed supplement; they have rightly classified under CTH 23, They relied upon the following cases: (i) Sun Export Corporation Vs CC 1997 (93) ELT 641 (SC) wherein it was held that supplements of animal feeds which are generally added to the animal feed were also covered by the generic term "animal feed‟. (ii) CCE Vs Surendra Cotton Oil Mil....
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....nts cannot rely on rejection of sample by CFL stating that the same was not fit for human consumption. She further submits that as in the present case provisional assessment was in terms of Section 18 (1) (b) of Customs Act, 962 and thus, speaking order in terms of Section 17 (5) of Customs Act, 1962 is not required to be issued; further, in terms of Section 128 (1) of Customs Act, 1962 any decision or order passed by officers of Customs can be appealed before the Commissioner (Appeals). 5. Heard both sides and perused the records of the case. 6. The issues that require consideration in this case are (i) Whether in the facts and circumstances of the case, the lower adjudicating authority was required to issue a speaking order in terms of Section 17 (5) of the Customs Act, 1962 (ii) in the absence of such speaking order what could be the relevant date for appeal in terms of Section 128 of Customs Act, 1962. (iii) what is the correct classification of the impugned goods whether under Chapter 21 as contended by the department or under Chapter 23 as contended by the appellant. 7. Coming to the issue of speaking order under Section 17 (5) of the....
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....peal. In such cases, the provision of Section 128 (1) themselves take care and by virtue of the provisions, the mere finalization of a Bill of Entry itself becomes an order or communication of the order. Therefore, the appeals are required to be filed in such circumstances within a time period from the date of such reassessment / finalization. 9. Coming to the issue of classification of Enzymes imported by the appellant as to whether the same would be merited classification under heading 21 or under heading 23. We find that headings 2102 and 2309 read as follows: Tariff Item Description of goods Unit Rate of dutyEUR# Standard Preferential Areas (1) (2) (3) (4) (5) 2102 2102 10 2102 10 10 2102 10 20 2102 10 90 2102 20 00 2102 30 00 Yeasts (active or inactive); other single cell micro-organisms, dead (but not including vaccines if heading 3002); prepared baking powders - Active yeasts: --- Culture yeast . . . . . . . . . . . . . . . . . . . . . . . . --- Baker's yeast . . . . . . . . . . . . . . . . . . . . . . . . --- Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....
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....t only two single dashes. One single dash contains dog or cat food, put up for retail sale and the second single dash contains "others" and the various foods and concentrates for animals are listed subsequently. It is clear that the entire heading 2309 talks of preparations of a kind used in animal feeding. By no stretch of imagination the impugned products imported by the appellants are preparations of a kind animal feeding. At the best, they may be used for preparation of animal feeds that is to say that they are raw material used for preparation of animal feed. Therefore, they cannot be classified along with animal feed merely by virtue of the inclusive definition given in the explanatory notes for the heading 2309 CETA. 11. The appellants have greatly relied upon the decision of the Larger Bench in the case of Tetrogone Chemie (supra) wherein the vitamins used for mixing in the animal feed was held to be classified under chapter 23 of CETA. However, we find that this judgment is in respect of Central Excise Tariff Act, 1985; the issue before the Bench was the assessments of Vitamins manufactured by the manufacturers of Animal feed/ supplements; it was rendered in the context....