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2024 (1) TMI 349
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....essment of the Bills of Entry and payment of duty, the appellant was advised that they had inadvertently classified the products under incorrect chapter heading and that the correct classification is under Chapter Heading 1504 which reads as "Fats and oils and their fractions, of fish or marine mammals, whether or not refined, but not chemically modified". The Chapter Heading 15042020 specifies 'Fish lipid oil'. 4. According to appellant, due to the erroneous classification, the appellant had paid excess duty of Customs @ 50% of the assessable value instead of paying duty @ 30% of the assessable value which is the rate applicable to the goods falling under CTH 15042020. So also, the appellant had paid the excess Integrated Goods and Service Tax at 18% instead of 12% rate, which is the rate of IGST payable when the goods are classified under 1504. The appellant would get benefit of concessional duty of IGST as per Sl.No.22 under Chapter II of Notification No.1/2017-Integrated Tax (Rate). 5. The appellant upon realizing the error in classification, filed a refund application dated 1.7.2020 under Section 27 of the Customs Act, 1962, claiming refund of excess duty paid to the ext....
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....ification at the time of import. 7.3 In this regard, it is submitted that an Appeal against the Bills of Entry for change of classification can be preferred as Bills of Entry are nothing but assessment Orders which are appealable. In this regard, reliance is placed on the case of M/S Dipen Overseas Dipen Trading Company v. C.C., - Mundra, 2019 (1) TMI 255 - CESTAT AHMEDABAD, wherein the following has been held: "4. ...We absolutely disagree with the contention of the Ld. Commissioner (Appeals) that the appellant suo moto declared the classification of Used Jute Bags under 63051090; therefore, they cannot challenge the assessment of bill of entry. It is settled law by the Hon'ble Supreme Court in various judgments particularly in the case of Priya Blue Industries Ltd 2004 (172) ELT 145 (SC), that the assessment order of bill of entry is an appealable order. Therefore, the appeal is maintainable against the said assessment order." 7.4 It is submitted that the Appellant imported the products under dispute i.e. Fish Oil for the first time and inadvertently mis-classified them under CTH 2106 90 90, when the correct classification is CTH 1504 20 20. In order to correct the....
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....h oil/ concentrated omega-3 - fish along with inter alia glycerol and purified water. It is encapsulated in a gelatin shell. 8.2 CTH 1504 covers within its ambit Oils of Fish whether or not refined and CTH 1504 20 20 specifically covers 'Fish Lipid Oil'. As per Rule 1 of the General Rules of interpretation of the Import Tariff, the classification shall be determined according to the terms of the headings and any relative Section/ Chapter Notes. Going by the same, it is submitted that a mere perusal of the Heading and the Descriptions shows that the instant imported Fish Oil is to be classified only under CTH 1504 2020. 8.3 Further, as per Notes to the Chapter 15, only edible preparations containing by weight more than 15% of the products of heading 0405 (butter and other fats and oils derived from milk; dairy spreads) is excluded from Chapter 15 and classifiable under Chapter 21. 8.4 CTH 2106 90 99 is a residuary and general heading which cannot be resorted to when there is a more specific heading, namely CTH 1504 20 20 covering the said product. The heading itself states "food preparation not elsewhere specified". Therefore, when there is another Heading specifying the pr....
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....g under Regulation 7.0 of the Food Safety and Standards (Food or Health Supplements, Nutraceuticals, Foods for Special Dietary uses, Foods for Special Medical Purpose, Functional Foods and Novel Food) Regulations, 2016 which specifies conditions for nutraceuticals. It is submitted that the goods imported by the Appellant i.e. the Fish Oil capsules are nutraceuticals. It is pertinent to submit that nothing in the NOC certificate substantiates the Ld. Respondent's contention that the classification under CTH 2106 90 99. On encapsulation of the Fish Oil: 11.4 It is further submitted that the mere fact that it is in the form of a capsule does not change its characteristics/ chemical composition/ identity/ its classification. This finds support from the decision/ opinion of the Harmonized System Committee of the World Customs Organization in its 13th Session, vide Document No. 38.625E dated 18.02.1994, wherein it was held that encapsulation of the product is not sufficient to exclude the product from Chapter 15. 12. Relying on the above Opinion of the HSC, the Customs Commercial Rulings Division of the United States of America in HQ 964808 dated February 19, 2002, held that Fis....
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....he same. On "food supplement" explanatory note: 20. It is submitted that the Ld. Respondent in the impugned Order referred to explanatory note below: (16) Preparations, often referred to as food supplements, based on extracts from plants, fruit concentrates, honey, fructose, etc. and containing added vitamins and sometimes minute quantities of iron compounds. These preparations are often put up in packagings with indications that they maintain general health or well-being. Similar preparations, however, intended for the prevention or treatment of diseases or ailments are excluded (heading 30.03 or 30.04). 21. It is submitted that the above explanatory note referred to by the Respondent would not include fish oil, as firstly, it is not specifically mentioned and secondly, it cannot be added under the "etc." in the Note, which follows the words "extracts from plants, fruit concentrates, honey, fructose" as applying the Rule of Ejusdem Generis, it can be said that only extracts from plant based items are included under the said Note, and hence the Heading and not those from animals/ mammals, like fish. 22. In view of the above submissions, Ld. Counsel prayed....
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.... (2) (3) (4) (5) ... ... ... ... ... 2106 FOODS PREPARATIONS NOT ELSEWHERE SPECIFIED OR INCLUDED 2106 10 00 - Protein concentrates and textures protein substances kg. 40% - 2106 90 - Other: --- Soft drink concentrates: 2106 90 11 ---- Sharbat kg. 150% - 2106 90 19 ---- Other kg. 150% - 2106 90 20 --- Pan masala kg. 150% 2106 90 30 --- Betel nut product known as "Supari" Kg. 150% - 2106 90 40 --- Sugar-syryps containing added flabvouring or colouring matter, not elsewhere specified or included; lactose syryp; glucose syrup and malto dextrin syrup kg. 150% - 2106 90 50 --- Compound preparations for making &nbs....
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....) in case of import of 'fish oil' which falls under CTH 1504 and therefore goods cannot be classified under CTH 15042020. 28. On perusal of the impugned order, we find that the Commissioner (Appeals) has referred to the NOC issued by Food Safety and Standards Authority of India. A decision on classification cannot be made merely because the goods are mentioned by the said Authority as 'Food Supplement' in these documents. We do not find any discussion made by the Commissioner (Appeals) as to the classification with regard to the tariff or the ingredients of the goods imported. Though the goods are claimed by the appellant to be 'fish oil', they are imported in the form of capsules. It requires to be examined whether there are any other ingredients other than 'Fish Lipid Oil' and whether these are chemically modified or not. The appellant has not been able to place any evidence to substantiate the ingredients of the 'Fish Lipid Oil Capsules' imported by them. The Ld. Counsel for appellant has submitted that they would be able to furnish details with regard to the ingredients of the goods imported and requested for a further opportunity. It is also submitted that this consignment ....