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2023 (5) TMI 299
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....86510 /15 E/86517 /15 E/86511 /15 E/86513/ 15 Product in dispute Zymegold plus Granules Zymegold plus Liquid Zymegold plus Liquid Zymegold plus Liquid Zymegold plus Granules Dripzyme Dripzyme OIO 06/ADC/CE X/KPL/2013 dated 26.12.2013 30/ADC/CE X/KPL/2013 dated 26.12.2013 31/ADC/CE X/KPL/2013 dated 26.12.2013 32/ADC/CE X/KPL/2013 dated 26.12.2013 RTN/128A/ 14 dated 25.10.2014 11/CEX/AD C/KOP/2012 dated 19.03.2013 18/CEX/ADC /KOP/2012 dated 19.03.2013 OIA KLH-EXCUS-000-APP-003-007-15-16 DATED 1.4.2015 KLH-EXCUS-000-APP- 001-002-15-16 dated 1.4.2015 Period July 2011 to November 2011 December 2011 to March 2012 April 2012 to July 2012 August 2012 to January 2013 May 2013 to December 2013 Septembe r 2012 to January 2013 August 2011 to March 2012 Demand 42,56,457 19,45,179....
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.... potassium) and even as per CBEC circular No.392/25/98-CX, dated 19.5.1998 it is outside the purview of plant grown regulator and that the authorities below failed to appreciate the trade parlance evidence and expert opinion produced by them. According to learned counsel, for the earlier period also i.e. the period earlier than the period in issue herein, this issue arose mainly for the reason that the appellants were using ingredients 6-BA & 4-CPA in their product composition which are plant growth regulator, which, later the appellants have stopped using w.e.f. 3.7.2010 and informed the same to the department also, but despite that the department re-classified the products. Learned counsel further submits that inspite of using the aforesaid two ingredients in their product, this Tribunal on the identical issue concerning Zymegold Plus for the period November, 2006 to June, 2011 vide its Final Order No. A/85667- 85668/2022 dated 29.7.2022 in Appellants' own case in the matter of M/s. Goldmuhor Agrochem & Feeds Ltd. vs. CCE, Kolhapur has decided the same in favour of the appellants by allowing the appeals filed by the appellants and held that the impugned product cannot be treated ....
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....nd plant growth regulator. A fertilizer will promote growth of the plant by providing nutritional support and will not inhibit it, whereas a Plant Growth Regulator stimulates plant growth without providing any nutrition to the plants. It's like a tonic which promotes/inhibits the growth by affecting the structure at the physiological level. Whereas fertilizers provide the life giving nutrients without which the plant cannot grow. Fertilizer is a material organic or inorganic, natural or synthetic which supplies one or more of the chemical elements required for plant development. Each of the essential nutritional elements (viz. macro nutrient element like nitrogen, secondary nutrient element like sulfur and micro nutrient element like zinc) has a definite and specific function to perform in the growth and the development of plants. Deficiency of any of these essential nutrients cause abnormal condition and upsets the development in plants. In fact plants cannot survive without essential nutrient elements supplied from fertilizers or from organic and inorganic chemical in the soil. On the other hand, plant growth regulator is an organic component other than nutrients which in small a....
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....be classified as plant growth regulator just because the traces of 6-BA and 4-CPA are present. The relevant paragraphs of the aforesaid order (supra) are reproduced hereunder:- "6. ...................... The goods are to be classified as per their description and the general description should not be preferred before the specific description. Moreover, in terms of Rule 3(b), mixture consisting of different materials is to be classified with reference to the major component which gives it the essential character. We find that in the case of impugned product, the major constituent is seaweed powder extract. The learned adjudicating authority has not appreciated the provisions of Rule 3(a) and (b) correctly and has jumped directly to Rule 3(c) of the General Interpretation Rules, which is not correct to our understanding. The classification of the goods should be done by the reference of the heading and chapter note. If needed, the help of Explanation Notes of HSN needs to be taken. HSN Notes of heading 3101 refers to animal or vegetable fertilizers, whether or not mixed together or chemically treated, fertilizers produced by the mixing or chemical treatment of animal or vege....
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.... has been made before us that the products in issue have been reclassified under the category of plant growth regulator as they are based on seaweed extract but we are afraid that the aforesaid decision has considered that aspect also and held that when seaweed and other algae are used for various purposes like pharmaceutical products, cosmetics, human consumption, animal feeding and fertilizers and when they are used as fertilizers they should fall under heading 3101. In yet another decision in the matter of M/s. Northern Minerals Ltd. vs. CCE, Delhi; 2001(131) ELT 355 (Tri.- Del.) it has been held that products based on seaweeds which are basically growth enhancer with micronutrients, cannot be classified under CTH 3808 as plant growth regulator. Otherwise also seaweed extract powder are fertilizer in nature and classifiable under Tariff Item 31010099 of the Central Excise Tariff Act, 1985 and are excluded from the Tariff Heading 12.12 by virtue of HSN explanatory notes as they were procured by the appellants in powder form and not in natural form. As per the tables produced in earlier paragraphs showing the composition of ingredients, it has been noted that seaweed Extract conta....
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.... PGRs and are industrially produced and marketed. A list of some of the PGRs industrially produced in India is enclosed with the reply of IARI. 3.2 It would thus be noted that PGRs are different from nutrients, be it macronutrient or micronutrient . The difference between PGR and micronutrient has been clearly brought out in the reply from ICAR. PGR as a substance is specifically covered under CETH 3808. More specifically , Gibberellic acid and Plant Growth regulators are respectively covered under tariff item 3808 9330 and 3808 9340. 11. Presence of micronutrients in the products in issue has been taken against the appellants by the learned commissioner. It is interesting to note that plant growth regulators are grouped under CETH 38.08 alongwith other insecticides, fungicides, herbicides and disinfectants, all of which are intended to destroy pathogenic germs, insects, mosses and moulds, weeds, pests to achieve their results. They even considered as pesticides in some parts of the world whereas micronutrients are promoting only growth and health of the plant. A co-ordinate Bench of the Tribunal in the matter of CCE vs. M/s. Aries Agrovet Industries Ltd.; 2017-TIOL-263....
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....ing the impugned order is the order passed by his predecessor in appellant's own cases on identical issue for the earlier period but we are afraid that it cannot be accepted, as the Tribunal in appellant's own case for the earlier period vide its order dated 29.7.2022 has allowed the Appeals filed by them for the period November, 2006 to June, 2011 and held that the product Zymegold Plus is a fertilizer and we see no reason to differ with the same as the department has failed to produce any document to show that the same has been challenged in appeal anywhere by the department or that any stay of the said order has been obtained by the department. The reasoning given by the Tribunal for Zymegold Plus is equally applicable for Dripzyme also as it also contains seaweed extract based product alongwith various other nutrients. It contains soluble like seaweed extracts, proteins, carbohydrates, inorganic salts and other inherent nutrients contained in the product of vegetable origin along with substantial portion of adjuvant and aqueous diluents. The appellant had also placed on record the test report on analysis of sample of Dripzyme issued by SGS India Pvt. Ltd.- a laboratory which al....