TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 818
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....als) who vide Order in Appeal C. Cus. No. 491/2015 dated 29.5.2015 confirmed the order of the lower authority. Aggrieved by the impugned order, the appellant is before the Tribunal. 2. We have heard Shri B. Venugopal, learned counsel for the appellant and Smt. Anandalakshmi Ganeshram, Ld. Authorized Representative for the respondent-department. 3.1 The learned counsel Shri B. Venugopal submitted that the issue of classification of the impugned imported product viz., Squid Liver Powder' has been decided by this Hon'ble Tribunal in their own case vide Final Order Nos. 40465 to 40468/2023 dated 22.06.2023. The said Final Order (No. 40465/2023) has been challenged by the Appellant before the Hon'ble High Court of Madras in CMA No. 2639/2023 under section 130 of the Customs Act, 1962 on various legal grounds and is currently pending before the Hon'ble High Court. Under the circumstances, he prayed to keep the proceedings under the present appeal pending, until the CMA No. 2639/2023 is heard and disposed of by the Hon'ble High Court, in the interest of justice. He further prayed that if the matter was being decided on merits they may be allowed to plead pure quest....
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....may be kept pending. 5.2 No order staying the proceedings before us has been brought to our notice by either of the contesting parties. 5.3 Prima facie we feel that an appeal relating to a question having a relation to the rate of duty of customs/ classification would lie before the Hon'ble Supreme Court under section 130E of the Customs Act, 1962. That apart, we find that the Hon'ble Supreme Court while dealing with a similar plea in Kunhayammed Vs State of Kerala [2001 (129) ELT 11(SC)], had held; "3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent. 4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is ....
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....hts and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis, and the disputed issues alone then travels up in appeal. As a general principle an Appellate Court should not travel outside the pleadings made in the Appeal Memorandum or Cross Objections both of which should be based on the facts as available in the records of the Original Authority. However, the Hon'ble Supreme Court has in its judgment in Chittoori Subbanna Vs Kudappa Subbanna (AIR 1965 SC 1325) recognized that it is possible to include additional grounds in the grounds of appeal by moving a separate application for permission before the appropriate appellate forum for its consideration, which the forum at its discretion may consider. 6.3 Ordinarily fresh evidence is not to be entertained by the Tribunal. Rule 23 of the Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 states that the parties to the appeal shall not be entitled to produce any additional evidence, either oral or documentary, before the Tribunal. Hence the power to allow additional evidence at the Tribunal level, whether on fact or law, oral or documentary is discretionary in nature. T....
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....l, which seeks to take away a vested right of limitation or any other valuable right accrued to the other party. This could then lead to unending legal disputes. (xi) no compelling reason or substantial cause has been shown to permit the additional evidence (xii) the additional evidence seeks to fill in gaps or restore weak areas in the case. (xiii) the rival party has not been given an opportunity to rebut it. (xiv) the additional evidence is not of an unimpeachable character. 6.4 Further the Apex Court judgment in National Thermal Power Co Ltd Vs CIT [1998 (99) ELT 200 (SC)] cited by the appellant, states as under: "7. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner of Income-tax (Appeals) takes too narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T, v. Anand Prasad (Delhi), C.I.T. v. Karamchand Premchand P. Ltd. and C.I.T. v. Cellulose Products of India Ltd.. Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the asses....
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....pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but not dealt with." (emphasis added) We find that no application for rectification of mistake (ROM), was filed by the appellant before this authority, and the order in question has been appealed to the Hon'ble High Court, foreclosing such an option. As a result, this authority has become 'functus officio' and no longer has jurisdiction over the matter. The aggrieved person cannot directly or in-dire....
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.... addressed the need for reconsideration. Consequently, the question of law raised by the appellant cannot be admitted as it does not comply with the provisions of law. 8. Additional Evidence: Consideration of affidavit filed by Dr. Anuj Tyagi 8.1 As regards the plea that no findings have been offered in the final order on the notarised affidavit dated 15.11.2011 of Dr. Anuj Tyagi. We find that the same was not placed before the original authority, hence revenue did not have a chance to examine the affidavit or the expert if they so desired, and hence the evidence is not shown to be of an unimpeachable character, putting revenue at a disadvantage. In the normal course the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. The parties are not entitled, as of right, to the admission of such evidence. The admission of additional evidence also does not apply, when based on evidence on record, the Appellate Court can pronounce a satisfactory judgment. A party who had ample opportunity to produce certain evidence before the lower authority but failed to do so or did not show reasonable care or due diligence to do so or elect....
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....such processing. Sub-heading Note: For the purposes of sub-heading 2306 41, the expression "low erucic acid rape or colza seeds" means seeds as defined in sub-heading Note 1 to Chapter 12. Tariff Item Description of the goods Unit Rate of Duty (1) (2) (3) (4) (5) 2301 Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves 2301 10 - Flours, meals and pellets, of meat or meat offal; greaves 2301 1010 --- Meat meals and pellets (including tankage) Kg. 30% 2301 10 90 --- Other (including greaves) Kg. 30% 2301 20 - Flours, meals and pellets, of fish or of crustaceans, molluscs or other aquatic invertebrates --- Fish meal, unfit for human consumption 2301 20 11 ---- In powder form Kg 30% 2301 20 19 ---- Other Kg. 30% 2301 20 90 ---- Other Kg. 30% 2309 Preparations of a kind used in animal feeding 2309 10 00 - Dog, or cat food....
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....nce 'squid liver powder' contains a mix of ingredients both of molluscs and plant origin, from a plain reading of the heading, squid liver powder does not fall under the heading. 8. Both the appellants have referred to the HSN to further explain their stand. Hence the relevant portion of the HSN is extracted below. Preparations of a kind used in animal feeding. (HSN) Chapter 23 Residues and Waste from the food industries; prepared animal fodder 23.01 - Flours, meals and pellets of meat or meal offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves. 2301.10 Flours, meals and pellets, of meat or meat offal; greaves 2301.20 Flours, meals and pellets, of fish or of crustaceans, molluscs or other acquatic invertebrates This heading covers:- (1) Flours and meals, unfit for human consumption, obtained by processing either the whole animal (including poultry, marine mammals, fish or crustaceans, molluscs or other aquatic invertebrates) or animal products (such as meat or meat offal) other than bones, horns, shells etc. These products (obtained mainly from slaughter houses, floating factories w....
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....' aims. Examples of such substances include cereals, half-sugar mangolds, tallow, straw. IV-2309-2 23.09 (2) " Body-building " protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not " burned up " by the animal organism but contribute to the formation of animal tissues and of the various animal products (milk, eggs, etc.). They consist mainly of proteins or minerals. Examples of the protein-rich substances used for this purpose are seeds of leguminous vegetables, brewing dregs, oil-cake, dairy by-products. The minerals serve mainly for building up bones and, in the case of poultry, making egg-shells. The most commonly used contain calcium, phosphorus, chlorine, sodium, potassium, iron, iodine, etc. (3) " Function " nutrients. These are substances which promote the assimilation of carbohydrates, proteins and minerals. They include vitamins, trace elements and antibiotics. Lack or deficiency of these nutrients usually causes disorders. The above three groups of nutrients meet the full food requirements of animals. The mixing and proportions depend upon the animal production in view. (B) PREPARATIONS FOR SUPPLEMENTING (BALANCING) FARM-PRODUCED FE....
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....nting the basic farm-produced feed with organic or inorganic substances (supplementary feed); or (3) for use in making complete or supplementary feeds. That in order to fall under the third category the goods should be a 'pre-mix' that are added to complete feed or supplementary feed for specific purposes such as improving digestion, preservation or as carrier. We find from the above HSN notes that the heading 230990 covers preparations for used in making the complete feed or supplementary feed and need not be an end product in themselves. As per the notes 'this heading covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed for use in making complete or supplementary feeds'. Further as stated by the appellants squid liver powder contains certain proteins, peptides and amino acids in it. They are in line with the HSN description, as being composed consisting of a number of substances, sometimes called additives, the nature and proportion of which vary according to the animal production requirement. As stated by appellants, squid liver powder is used in shrimp feed formulation as an attractant. It is common knowledge that ....
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....nd with reference to the HSN. Hence the need for applying Rule 3(b) of GRI does not arise. 9.1 The appellant M/s Godrej Agrovet Ltd. have also stated that there cannot be a change in classification or assessment practice when the impugned goods were earlier being classified under CTH 2301 in their case. On the contrary the appellant M/s Avanti Feeds Ltd. were of the opinion that the principles of res judicata do not apply to tax matters and that they cannot be prevented from canvassing the correct classification and that assessment under each Bill of Entry is a separate appealable order and cannot be taken as a precedent. We find that earlier assessment practice cannot be a substantive bar on rectifying a wrong classification. Such a reason cannot be used as a reason to continue a wrong classification even after it has been noticed by either of the sides. We find that the appellant M/s Godrej Agrovet Ltd have admitted in their submissions that they had filed BE No 543857 dated 19/06/2010 under CTH 23099010, which they claim was a mistake. Again, it is seen from the documents filed by them along with their appeal that in the earlier Bill of Entry No 467736 dated 23/03/2010 they ha....
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....have also not relied upon the test report which has been disputed by the appellant as stated in our discussion above. 11. The learned counsel appearing for M/s. Godrej Agrovet Ltd. relied upon Boards Circular no 80/54/ 2018-GST dated 31/12/2018 regarding clarifications on GST rates and classification of goods, to state that HS Code 2309 would cover only such products which in the form supplied are capable of specific use as food supplements for animals and are not capable of any general use. Boards clarifications are not binding on Tribunals. These clarifications are given in the context of another law that is GST and are distinguished. They have further referred to the US Customs ruling No NY 186510 pertaining to 'Instant bait' with totally different ingredients. The said bait is dissimilar to the impugned product and bears no comparison and cannot even have a persuasive value. They have also referred to the decision of the Tribunal in the case of Zymonutrients Pvt. Ltd. Vs. Commissioner of Customs reported in 2020 (372) ELT 458 (Tri. Chennai) to state that Heading 2309 talks of preparation of a kind used in an animal feed and that by no stretch of imagination are the products i....