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2023 (5) TMI 398
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....n this common order. The first of the appeals lies against proceedings before Commissioner of Customs (Import), Air Cargo Complex (ACC), Chhatrapati Shivaji International Airport (CSIA), Mumbai culminating in order [order-in-original no. CAO no. CC-PVNSB/17/2021-22/Adj(I) ACC dated 28th December 2021] for recovery of Rs. 5,07,06,602 as differential duty on import of 'probiotic culture' of three varieties against 73 nos. bills of entry filed between 18th July 2016 and 31st March 2021. The other appeal lies against proceedings before Commissioner of Customs (Import), Air Cargo Complex (ACC), Chhatrapati Shivaji International Airport (CSIA), Mumbai culminating in order [order-in-original no. CAO no. CC-PVNSB/18/2021-22/Adj(I) ACC dated 29th December 2021] for recovery of Rs. 90,89,022 as differential duty on import of 'Howaru probiotic culture' against bills of entry filed between 21st June 2016 and 26th October 2018. 2. The appellant claims that they had been importing the same goods, which are freeze-tried cultures of bacterial strain having probiotic properties, since 2015 by declaring the same classification and availing the benefit of the said notifications and that the imported....
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....ading therein, are also of little relevance except to the extent that adjudicating authority as held that 'foods or beverages, other than nutritional preparations for intravenous administration' in note 1 (a) precludes inclusion of the imported goods therein owing to further utilisation for manufacture of downstream products instead of consumption at that stage. The substituting classification is emplaced in chapter 21 of First Schedule to Customs Tariff Act, 1975, intended for 'miscellaneous edible preparations', and it is clear from the several headings therein that the imported goods do not find fitment in any of the specific descriptions corresponding to five of the headings and customs authorities have found 'food preparations not elsewhere specified or included', corresponding to heading 2106 of First Schedule to Customs Tariff Act, 1975, to be the most appropriate classification. The adjudicating authority has concluded that the imported goods are 'food preparations' that are not 'protein concentrates and textured protein substances' but also not any of the goods specified within, including 'diabetic foods' and 'sterilised or pasteurised millstone' within the residual 'other....
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....urt in Dunlop India Ltd. v. Union of India. AIR 1977 SC 597 at Page 607. In such a situation, wherein it was stated (AIR P. 607 SCC P. 254, Para 35) :- "When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause." 31. Similarly, in Hindustan Ferodo Limited v. Collector of Central Excise, Bombay, 1997 (2) SCC 677, it is held in Para 4 as under :- "It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22-F lay upon the Revenue. The Revenue led no evidence. The onus was not discharged. Assuming therefore, that the Tribunal was right in rejecting the evidence that was produced on behalf of the appellants, the appeal should, nonetheless, have been allowed". has not been discharged. Furthermore, he contends that the reliance placed by the adjudicating authority on the descriptions of the two chapters in First Schedule to Customs Tariff Act, 1975 runs counter to the mandate in the General Rules for the Interpretation re....
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.... duty sought in the bills of entry. The issue of whether the goods are 'probiotics' or not is, thus, not relevant to the proceedings. The wealth of material produced by both sides on the subject of 'probiotics' does not, therefore, assist in resolution of the dispute before us. 9. Learned Counsel has placed before us rulings of foreign customs administrations as has Learned Authorized Representative. We take notice that the impugned orders are about the nature of the impugned goods in the context of exclusions in chapter 30 of First Schedule to Customs Tariff Act, 1975 and inclusions in chapter 21 of First Schedule to Customs Tariff Act, 1975. The rulings relied upon by both sides had arisen from examination of the relevant product in the framework of the enumerations at the domestic level in the respective tariffs and that of the European Union (EU) pertains to application of non-tariff barriers imposed by a constituent State. At this stage, we may also take notice that, notwithstanding the several submissions of Learned Authorized Representative on the proper classification of 'probiotics' - whether as food supplement or ingredient for manufacture of food supplement, the intent ....