TaxTMI 
TaxTMI 
2023 (8) TMI 1131
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....ther fertilizers claimed by the appellant or under CETH 38089910 as pesticides not elsewhere specified and included is claimed by the department. 2. Shri Harish Bindu Madhavan, Learned Counsel appearing on behalf of the appellant submits that in the present case the issue involved is of classification for which department seeks to change the classification adopted by the assessee. The burden of proof to be discharged is on the department that the classification adopted by the assessee is not correct. In this regard he placed reliance on the judgment of Hon'ble Supreme Court in the case of HPL Chemicals Limited vs. Commissioner of C.Ex., Chandigarh - 2006 (197) ELT 324 (SC). He submits that in the present case the classification of "Neem Bl....
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.... 209 PBH 2.2 Without prejudice, he submits that the impugned order has not considered the whole description in the pamphlet/advertisement and has only picked and chosen parts which if read alone gives an impression that Gronimix is only a pesticide. It is his submission that this action of the department is erroneous and not sustainable in law. 2.3 He submits that the department has relied upon the letter of Director of Agriculture which states that Neem Blended Organic Manure is not included in the Fertilizer (Control) Amendment Order, 2006. He submits that the notification under the Fertilizer (Control) Amendment Order,2006 is not a pre-condition for classification of the Gronimix as "Fertilizers" under CETH 31010099 as per perusal of t....
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....sify Gronimix as pesticide when the primary use for which is it is manufactured and sold for enhancing the productivity of the soil. In this regard reliance was placed on Commissioner of Central Excise vs. Kishan Brothers - 2007 (218) ELT 623 (Tri.-Kol). He also placed reliance on the following judgments:- Puma Ayurvedic Herbal (P) Ltd vs. Commissioner of Central Excise - 2006 (196) ELT 3 (SC) Commissioner of Central Excise , Calcutta Vs. Calcutta Springs Ltd - 2008 (229) ELT 161 (SC) 2.5 He further submits that as per the test report from the Pesticide Residue Laboratory and the Institute of Pesticide Formulation Technology (a Government of India Society under the Department of Chemicals & Petrochemicals) the product Gronimix does not....
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....volved in the present case is on the basis of the facts of this case. The issue of classification is not free from doubts and it is a debatable one. In the same pamphlet of the product it describes the product as fertilizer and on the same pamphlet it also mentions that the product is pesticide. Moreover, only because the product Gronimix is made pre-dominantly by Neem, it cannot be conclusively said that because of this reason the good is fertilizer as there are pesticides/insecticides made of Neem/Neem oil. On the other hand, we find that the adjudicating authority has ignored so many vital material relied upon by the appellant such as the department has not discharged the burden which is required in the matter of classification. The deta....