2024 (6) TMI 92

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.... that there are many other importer who import goods already packed in bags and directly sale the product in the market. Learned Counsel pointed out that while they had been importing the goods under tariff heading 2835 2810 while they were classifiable under 2309 9090. 4. Earlier the appellant had imported vide bill of entry No. 6911527 dated 29.09.2014, 9267 506 dated 18.05.2015 and 2031901 dated 27.05.2015 and 3038087 dated 26.10.2015 and classified the same under heading 2835 2610 and paid duty at the rate of 26.428%. Imports by Bill of Entry No.7680674 dated 02.12.2016 and No. 9741324 dated 18.05.2017, the appellant classified the product under heading 2309 9090 and paid duty at the rate of 20.6 %. Thereafter, the revenue started investigation and the matter was decided against the appellant. In the impugned order reliance has been placed on Rule 3(a) of the general Rules of interpretation of import tariff which states that most specific description shall be preferred to a general description. The revenue has relied on the fact that 'mono calcium phosphate' appears as specific heading under custom tariff under CTH 28352619 and therefore goods should be classifiable in the s....

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....e rather than general use. Therefore, it cannot be regarded as impurity. 6. He also relied on the HSN that prescribes that Calcium Hydro Genortho Phosphate containing not less than 0.2% by weight of fluorine calculated on dry and hydro product is excluded from CTH 2835 and is covered under heading 31.03 or 31.05. He argued that similar logic the product imported by them cannot be classify under chapter 28 to under note 1 to chapter 28. 7. Learned Counsel argued that biofos MCP is correctly classifiable under heading 2309 as preparation of use kind animal feeding. He argued that retention of 0.16% by weight of fluorine in the Biofos MCP is for the specific for use of animal feed. As therefore the product is classifiable under chapter 23. 8. Learned Counsel also relied on the CBEC circular vide order No. 47/1/97 dated 03.03.1997 that had clarified that classification of die calcium phosphate die hydrate as animal feed grade would depend upon the fluorine content. He argued that fluorine content is relevant factors for the purpose of classification of goods as animal feed grade. He also relied on the decision of Hon'ble Gujarat High Court in case of Reman Blues and Chemical w....

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....     2309 10 00 Dog or cat food, put up for retail sale     2309 90 Other :     2309 90 10 Compounded animal feed     2309 90 20 Concentrates for compound animal feed       Feeds for fish (prawn, etc.) :     2309 90 31 Prawn and shrimps feed     2309 90 32 Fish meal in powdered form     2309 90 39 Other     2309 90 90 Other     2835 2835 PHOSPHINATES (HYPOPHOSPHITES), Kg. 7.5%   PHOSPHONATES (PHOSPHITES) AND       PHOSPHATES; POLYPHOSPHATES, WHETHER       OR NOT CHEMICALLY DEFINED     2835 10 Phosphinates (hypophosphites) and       phosphonates (phosphites) :     2835 10 10 Calcium hypophosphite     2835 10 20 ....

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....y for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use: (d) the products mentioned in (a), (b) or (c) above with an added stabilizer (including an anti-caking agent) necessary for their preservation or transport: (e) the products mentioned in (a), (b), (c) or (d) above with an added anti-dusting agent or a colouring substance added to facilitate their identification or for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than for general use." On the one side the revenue is treating presence of fluorine as mere impurity, the appellant is suggesting that fluorine is in the nature of micro nutrient essential for the purpose of animal feed. The appellant is of the view that the fluorine of the extent of 0.16% to 0. 19% has been left deliberately in the product to enhance quality of the product. 13. It has been argued on behalf of the appellants that "Biofos" MCP is also known as de florinated phosphate. It has been argued that the product is not completely fluorine free and contains fluorine to ....

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....ing principles: 1. The titles of Sections, Chapters and Sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the following provisions: 2. (a) Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classifica....

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....cking containers are clearly suitable for repetitive use. 6. For legal purposes, the classification of goods in the sub-headings of a heading shall be determined according to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires." 17. In terms of Rule 3(a) the heading which gives most specific description shall be prefer to providing more general description. We find that sub heading 2835 2610 provides absolute specific description whereas the heading 2309 9090 provides a general description. 18. This view is also supported by observation of Hon'ble Apex Court in case of PFIZER LTD 2015(326)ELT 431 (SC) wherein Hon'ble Court has observed as follows :- "The question that falls for consideration is as to whether the Virginiamycin imported under brand name STAFAC 1000 is classifiable under Customs Tariff Heading 2941.90 and Central Excise Tariff Heading 2941.90 or under Customs Tariff Heading 2309.90 and Central E....