TaxTMI 
TaxTMI 
2022 (8) TMI 103
X X X X Extracts X X X X
X X X X Extracts X X X X
....lants and were confirmed vide impugned orders dated 28.03.2012 and 18.09.2012. The appellants are in appeal against these impugned orders. 2. Learned Counsel for the appellants submits that the SN proposing to re-classify the product Zymegold Plus as 'Plant Growth Regulator' under CTH 3808 whereas the Commissioner has dropped the allegations made in the SCN and proceeded to decide the classification on a different footing by invoking Rule 3(c) of General Interpretation Rules. He submits that the general rule for interpretation was never invoked in the show-cause notice to decide classification of the product Zymegold Plus; it is a settled principle of law that the adjudicating authority cannot go beyond the grounds specified in the SCN; as held in Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC) and Champdany Industries Ltd. - 2009 (241) ELT 481(SC). The order passed beyond the scope of the show-cause notice is bad in law. 2.1 Learned Counsel for the appellants further submits that essential character of impugned part of Zymegold Plus is contributed by Seaweed Extract Powder, which is also classifiable under CETH 3101; Seaweed Extract Powder is of organic plant origi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rowth regular excludes nutrients as classified by CBEC in Circular No. 1022/10/2016 dated 6.4.2016; Hon'ble Supreme Court in Karnataka Agro Chemicals - 2008 (227) ELT 12 (SC) held that plant growth regulator are organic compounds other than nutrients. He submits that HSN Explanatory Notes of Chapter 38 defines that 'Plant Growth Regulator are applied to alter the life processes of a plant so as to accelerate or retard growth, enhance yield, improve quality or facilitate harvesting etc. Plant hormones (phytohormones) are one type of plant-growth regulator (e.g. gibberellic acid). Synthetic organic chemicals are also used as plant-growth regulators'; the show-cause notice and Order-in-Original admitted that the impugned Zymegold Plus contains nutrients like seaweed extract, therefore, in view of the Board's Circular cited above, the product Zymegold Plus being a nutrient is excluded from the definition of plant growth regulators. He relies on the following cases: - (i) Northern Minerals Ltd. Vs. CCE - 2001 (131) ELT 355 (T) (ii) CCE Vs. Chemcel Bio-Tech Ltd. - 2007 (211) ELT 41....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ls Ltd. Vs. CCE - 2001 (131) ELT 355 (T), the Tribunal held that the product 'Dhanzyme' is classifiable as fertilizer for the reason that it can only promoting the growth of plant and cannot inhibit the same; impugned product is based on seaweed extract and cannot inhibit the same; the impugned product is based on the seaweed extract and Hydrolyzed protein complex and both of which are classifiable under CETH 3101; the above said judgment in the case of Northern Minerals is upheld by Hon'ble Supreme Court as reported in 2003 (156) ELT A161 (SC). Lastly, he further submits that even if the product is classified under CETH 3105, it was eligible for exemption under Notification 4/2006-CE dated 1.3.2006. Learned Counsel submits that appellants vide letter dated 31.10.2006 informed the ingredients and classification of the impugned product; there was no fraud attempt with intent to evade payment of excise duty as the facts are very much in the knowledge of the Department in 2006 itself and the SCN cannot be issued for extended period. Therefore, the major portion of the demand does not sustain. He relies on Anand Nishikawa Co. Ltd. Vs. CCE - 2005 (188) ELT 149 (SC) and Yashanand Filamen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the heading which provides the most specific description shall be preferred headings providing a more general description However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall he classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration." On going through the above, it is seen that the emphasis of the rule is on the heading which prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ganic fertilizers and its manufacture and sale is prohibited under the provisions of Fertilizers Control Order. We find that the purpose of classification, the Fertilizers Control Order is of no consequence as we held above goods have to be classified under their respective headings as per the provisions of Central Excise Tariff Act. We find that in the case of Jai Shree Rasayan Udyog (supra), the Tribunal's observation as follows: - 6. It is seen that the chemical examiner has not conducted any tests and has given an opinion based on appellants' literature. We find that for similar product 'plantozyme' (also containing cytokinin) CESTAT in case of Leeds Kem (supra) had considered the issue of classification in great detail and held that the product is a biofertilizers and mere presence of small amounts of cytokinin would not detract from its character of bio fertilizer classifiable under Heading 31.01' and not under Heading 38.08. Similarly, another similar product known as Dhanzyme, CESTAT in the case of Nothern Minerals v. Comm. C. Excise (supra) relied upon the judgment in the case of Leeds Kem (supra) to come to same finding (holding it to be classifiable as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... I. The Chemical Examination Report has confirmed presence of sulphates, borates, silicates of potassium, ammonium and iron together with organic compounds in the impugned sample. All these ingredients are used for replenishment of nutrients in the soil and the same are the ingredients in most of the fertilizers. II. The chemical Examination Report says that the ingredients 'Auxin' and 'Cytokinins' are known to find use as PGR. However, percentage composition of these ingredients has not been ascertained. It cannot be ruled out that these ingredients may be present in small trances in the impugned sample and that the same can be found in fertilizers also. III. Literature of the impugned product which is always for information and knowledge of the consumer and normally which is termed as authentic information does not suggest that the impugned product is for specific use or is to be used to achieve specified results of regulating the plants. On the other hand the leaflet contains information normally contained for fertilizers. It does not suggest that the impugned product is to be applied directly on the plant. IV. Most of the ingredients found to be c....