TaxTMI 
TaxTMI 
2023 (4) TMI 728
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....ter 31.05.2006. 02. It has been the contention of the department that the product literature of the said product 'MIRACULAN' as given on the website of M/s. Dow Agro Science, USA which reveals that since 'MIRACULAN' contains Traicontanol as active ingredient and the same is used as plant growth regulator for increasing yield of the agriculture products. It has further been contended by the department that the appellant's product is solely marked by M/s. Dow Agro Science as plant growth regulator and since the marketing agency considers the subject product as Plant Growth Regulator, the appellant's should have claimed abatement of 30% only from their MRP Value after 01.06.2006. 2.1 On the basis of the above contentions, a show cause notice dated 30.06.2008 came to be issued on the following points; (i) the product viz. "MIRACULAN" should not be classified under Chapter Sub-heading no. 3808 3040 as "Plant Growth Regulator" during the period from 1/6/2006 to 29/12/2006 and thereafter because change in Tariff sub heads from 29/12/2006, and therefore the subject product should be classified under Chapter Sub-heading no. 3808 93 40; (ii) The amount of duty Rs. 119....
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....ein is a plant growth promoter. 03. Learned advocate appearing for the appellant has also relied upon case laws of BAHAR AGROCHEM & FEEDS PVT. LTD. V/s. CCE- 2007 (213) E.L.T. 33 (Tri.-Mumbai), CCE V/s. BAHAR AGROCHEM- 2008 (221), E.L.T. 6 (S.C.) and BAHAR AGROCHEM & FEEDS PVT. LTD.- 2012 (277) E.L.T. 382 (Tri.-Mumbai). It has also been contention of the learned Advocate that duty was paid by them under protest and therefore, it was required for the department to issue show cause notice under the provision of Section 11A of the Central Excise Act, 1944 even after filing refund claim within the prescribed time limit, no show cause notice under Section 11A has been issued to them. 3.1 As regard to classification of their product namely 'MIRACULAN', the main contention of the learned advocate has been as under :- i) The case of the department is that the product, in question, is a 'Plant Growth Regulator' falling under the Chapter Sub Heading No.38083040/38089340 and hence the rate of abatement should have been considered @30% instead of 35%. ii) In this case, the appellant further submits that the contentions of the department are not backed by any documentary....
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....oduct is composed of Triacontanol, this fact has never been disputed by the appellant. Only because the product is composed of 'Triacontanol', it cannot be concluded that the product is Plant Growth Regulator. In case of M/s Bahar Agrochem & Feeds Pvt. Ltd., reported in 2007 (213) ELT 33 (T), though the product was composed of 'Triacontanol', the Hon'ble CESTAT had declared the product as a 'Plant Growth Promoter'. vi) The said Chemical Examiner has not given the detailed reasons to conclude the nature of product, under dispute, as 'Plant Growth Regulator'. Thus, the classification of their product as Plant Growth Regulator is not based on any technical analysis. 04. We have also heard the learned Departmental representative who has reiterated the findings given in the Order-In-Appeal. 4.1 The issue before us to decide whether the product 'MIRACULAN' which primarily contains Traicontanol equivalent to 0.05% of weight can be classified as a plant growth regulator or a plant growth promoter. We find that primary basis of the department to hold that subject product 'MIRACULAN' is a plant growth regulator is on the basis of the chemica....
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....ertainly cannot be considered as a plant growth regulator. 4.4 We have also gone through this tribunal's decision in the case of BAHAR AGROCHEM & FEEDS PVT. LTD. reported under 2012 (277) ELT 382 (Tri.-Mumbai) 7.8 It is an admitted fact that Triacontanol has been notified as an insecticide and all the procedures prescribed under the Insecticide Act, 1968 and Rules made there under are applicable not only to Triacontanol but also to the preparations containing Triacontanol and the appellant has been complying with those provisions of the Insecticides Act, 1968. Section 38 of the Insecticide Act specifically provides that the provisions of said Act will not apply to any substance specified or included in the schedule or preparation containing any one or more substances, if such substance or preparation is intended for the purpose other than preventing, destroying, repelling or mitigating any insects, rodents, fungi, weeds and other forms of plant or animal life not useful to human beings. If the appellant‟s contention is that Vipul Booster is not used or capable of being used as an insecticide, they could have claimed exemption under Section 38 of the Insecticides A....
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.... classification as an „insecticide‟ under heading No. 3808.10 of the Central Excise tariff and not as a „plant growth regulator‟ under heading No. 3808.20. Since heading No. 3808.10 has been notified under section 4A of the central excise act, its valuation for the purpose of charging excise duty has to be done under the provisions of the said section and we hold accordingly. 8. The next issue for consideration is whether there is any suppression or willful mis-statement of facts on the part of the assessee with an intent to evade duty. The allegation in the show cause notice is that the appellant failed to bring to the notice of the department the fact that Triacontanol is an insecticide under the provisions of the Insecticides Act, 1968, which is a material fact to decide the classification of the said product and they also failed to submit to the department copies of the certificate of registration obtained under the Insecticides Act. In view of these omissions, they have suppressed the facts and willfully mis-stated the facts with an intent to evade duty. 8.1 The composition of product was known to the department right from 1989 onwards....
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....on 4A of the Central Excise Act, 1944 and also imposing equivalent penalty under Section 11AC. The appellant had filed appeals against the said orders before the Commissioner (Appeals), Pune, who vide his order-in-appeal dated 30-3-2007 had set aside the orders. This order was passed by the Commissioner (Appeals) based on this Tribunal‟s order dated 6-3-2007. The department is in appeal against the said order-in-appeal. Since the said Tribunal‟s order was set aside by the Hon‟ble Apex Court with a direction to re-consider the case afresh, the order-in-appeal dated 30-3-2007 does not survive. In view of our finding that the product Vipul Booster‟ is an insecticide classifiable under heading No. 3808.10 of the Central Excise Tariff, the aforesaid duty demands will sustain subject to the demand being within the normal period of limitation. However, as the issue relates to classification, penalties are not warranted. Accordingly we allow the appeals filed by the department subject to the modification as mentioned above. 11. In sum, we hold that the product "Vipul Booster" manufactured by the appellant, which has Triacontanol 0.1% w/w as its active ingre....