TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 349
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....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 extent of Rs.21,53,027/- in three Bills of Entry. Th....
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.... 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 classification, they have filed the Appeals which are permitted by law. 7.5 It is subm....
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....ll. 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 product, the same cannot be sought to be included under CTH 2106 90 99. As per Rule 3(a) of the General Rules of Interpretation o....
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....oods 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 Fish Oil Capsules, even after they are encapsulated, are to be classified under the HSN heading 1504. 13. It is submitted that the above opinion of the HS Committee has a great value and h....
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....pplements, 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 that the appeals may be allowed. 23. Ld. A.R Ms. Anandalakshmi Ganeshram appeared and argued for the Department. The findings in the impugned order was reiterated by Ld. A.R. 24. Heard both sides. 25. The main issue th....
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....a 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 non- alcoholic beverages kg. 150% - 2106 90 60 --- Food flavouring material kg. 150% - 2106 90 70 --- Churna for pan kg. 150% - 2106 90 80 --- Custard powder Kg. 150% - --- Other: 2106 90 91 ---- Diabetic foods kg. 150% - 2106 90 92 ---- Sterilized or pasteurized millstone kg. 150% - 2106 90 99 ---- Other kg. 150% - 26. The foremost ground....
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....r 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 was their first import and that subsequently the appellants have imported the very same goods and classified these under CTH 15042020 as 'Fish Lipid Oil' even though imported in the form of capsules. There has been no dispute on classification by the department for subsequent consignments in regard to assessment and classifying the goods under CTH 15042020 has been accepted by the Department. Taking note of these submissions, we are of the considered opinion that the matter has to be remanded to the adjudicating authority to consider the issue of classification after giving opportunity to the appellant to produce documents / evidence, if necessary. It also requires to be stated that the Chapter Heading 21069099 refers to 'Other" whic....