TaxTMI 
TaxTMI 
2020 (6) TMI 94
X X X X Extracts X X X X
X X X X Extracts X X X X
....declared classification of 29012990. The consignment was seized by Customs and original Show Cause Notice was issued and confirmed by the Commissioner vide OIO dated 24-7-2018, where in the impugned goods were confiscated for violation of conditions of Exim Policy. On an appeal preferred by the appellants, CESTAT, vide Final Order No.21933-21934/2018 dated 27/12/2018, remanded the issue back to the adjudicating authority for getting the goods retested at an institution having expertise in oceanography. However, on a similar order passed in respect of similarly placed importer i.e., M/s. Asha Biochem, department has filed a ROM in appeal No. C/21347/2018-DB. This Bench vide Final Order No.21933-21934/201 dated 27/12/2018 has accepted the ROM and modified the order to get the test undertaken at such institution that has expertise. As no institute was available for testing the goods, as per oceanographic parameters, the samples were again sent to CIFT who re-confirmed the test results indicated by them earlier. Customs Department in order to re-confirm the findings, of CIFT, sent the samples to Customs House Laboratory, an NABL accredited laboratory, who also confirmed the findings of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....have an analysis to find out whether the cargo is sourced from the marine origin; Appellant is at liberty to obtain a clarification from the licensing authorities of the eligibility to import Squalene oil even if of marine origin. 5. Learned counsel also submits that Customs issued a letter dated 15-3-2019 stating that they are unable to find any Institutions to do the required analysis. Container Freight Station (CFS) where the Customs detained the Cargo, vide letter dated 8-4-2019, reported that they were going to close down the unit and therefore the Appellant was directed to remove the Cargo without further delay. Customs notified the appellant on 28-5-2019 that they had conducted the analysis. In the said report, it is clearly indicated that the unsaponfiable matter in the impugned goods is 85.82%; Bureau of Indian Standards stipulates that for fish oil the Saponification value has to be in between 185-200 and the percentage of unsaponfiable matter percentage has to be 4%. From this, it is revealed that the Cargo is not Marine oil and it does not have the characteristics of the same. 6. Learned counsel also submits that the Appellant preferred Writ Petition No. 16986/2019 fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... declared the goods as "Acyclic Hydrocarbon Unsaturated Squalene 80%" and classified the same under CTH 2901 29 90 while filing import documents (under Advance Authorisation License); when the goods were examined by officers of Customs, in the presence of Customs brokers, it was observed that the content is light yellow liquid, of bad fishy smell packed in metal drums; samples were drawn from the consignment and sent to the CIFT (Central Institute of Fisheries Technology), Cochin, who vide Certificate dated 6/4/2018, stated that the oil received for inspection falls under the category of "Fats and Oil and their fractions, of fish or marine mammals, whether or not refined, but not chemically modified"; based on the said test report, the goods under import were held to be classifiable under CTH 1504 20 90; However, when the importer did not agree with the said test report, a reference was made again to CIFT, who vide letter dated 4/5/2018, clarified that the sample analysis was done using Perkin Elmer Gas chromatograph FID equipped with a column specific for the analysis of fatty acids and hydrocarbons present in oils. 10. Learned Authorised Representative submits that consequent to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... imported by the appellants whether under CTSH 15042090 (as claimed by the Department) or CTSH 29012990 (as claimed by the appellants). A look at the competing headings would throw some light on the issue. Chapter 15 of the Customs Tariff deals with animal or vegetable fats and oils and their cleavage products; prepared edible fats; animal or vegetable waxes. Heading 150420 is as follows: 1504 FATS AND OILS AND THEIR FRACTIONS, OF FIST OR MARINE MAMMALS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1504 10 - Fish liver oils and their fractions 1504 10 10 --- Cod liver oil --- Other 1504 10 91 ---- Squid liver oil 1504 10 99 ---- Other 1504 20 -Fats and oils and their fractions of fish, other than liver oils 1504 20 10 --- Fish body oil 1504 20 20 --- Fish lipid oil 1504 20 30 --- Sperm oil 1504 20 90 --- Other 1504 30 00 -Fats and oils and their fractions, of marine mammals As per ITC (HS), 2017 SCHEDULE 1 - IMPORT POLICY the goods falling under Exim Code (corresponding to CTH) 1504 20 90 are categorised under "prohibited" goods for import. 13.1. Chapter 29 of Customs Tariff covers organic chemicals; Note 1 (a) to the Chapter e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s own, the scheme of the First Schedule will have to be examined. 9. Other than with reference to specified headings or descriptions in note 1(e), which need not necessarily be chemically defined, and goods specifically excluded, the headings in chapter 29 of First Schedule to Customs Tariff Act, 1975 are intended for "separately defined organic compounds‟, whether or not containing impurities. Correspondingly, there are contra exclusions of "separately defined organic compounds‟ in other chapters implying that conflict of choice between a specific heading in another chapter and in this chapter, the goods are, inevitably, to be classified in chapter 29. On the other hand, notes in chapter 15 of First Schedule to Customs Tariff Act, 1975, which Revenue considers to be more apt, is devoid of such a restrictive condition. Hence, a conflict between a specific heading in chapter 15 and chapter 29 would be resolved by classifying under the more specific heading of the two. Therein lies the dilemma for the claim of the appellant for coverage is under a residual entry that is handicapped thus" 15. Going by the above order of CESTAT, the conflict between a specific heading in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the goods should not be based on the test reports. Though, we accept this in principle, we find that the test reports give a fair idea of the nature and characteristics of the product. In the instant case, CIFT and Customs Laboratories have reported that the impugned product is fish oil. Therefore, we find that it cannot be classified under Chapter 2901 as saturated or unsaturated acyclic hydrocarbons along with ethylene, propene, butene, acetylene, heptene etc. It is of a great common sense that any organic matter would contain hydrocarbons and for that very reason, it cannot be classified under the heading applicable to hydrocarbons. If such an approach is taken entire Customs Tariff as far as it deals with living beings, goods or plant or animal origin would become redundant. Moreover, there is no reason as to why a report given by a professional institute such as CIFT and accredited laboratory such as Customs Laboratory. We find that the learned Adjudicating Authority has relied upon the case of SKOL Breweries Ltd. 2017 (7) GSTL 102 (Tri. Mum) wherein it was held that expert opinion of independent body regarding the nature of the goods cannot be ignored. Therefore, we find t....