TaxTMI 
TaxTMI 
2025 (8) TMI 818
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....up the matter before the Commissioner (Appeals) 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 m....
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....n 130 of the Customs Act, hence the present proceedings 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 grant....
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....[1998 (99) ELT 200 (SC)]. 6.2 The normal rule is that in any litigation the rights 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 Tribun....
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....vidence would introduce a new cause of action which completely alters the appeal and would aid the appellant to establish a new case in an appeal, 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....
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.... in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had 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 ....
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.... the Benches query may not have been deliberate. However, an appeal cannot indirectly revisit an earlier order based on the same facts, particularly if the option of a ROM was not exercised by the appellant, which could have 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 Appe....
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....feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of 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....
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....i.e. products which go into the manufacture of animal feeds and need not be an end product in itself. There is nothing in the Chapter Notes to suggest otherwise nor is there any exclusion removing such products from the Chapter. Hence from a plain reading of the Tariff Heading, 'squid liver powder' being a preparation used for aqua feed and all type diet for animals, is rightly classifiable under CTH 2309. 7.3 We find that CTH 230120 preferred by the appellants covers 'flours, meals and pellets, of fish or of crustaceans, molluscs or other aquatic invertebrates'. The heading does not cover products containing ingredients of plant origin. Since '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, o....
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....eated to such an extent that the characteristic cellular structure of the original vegetable material is no longer recognisable under a microscope. (Emphasis added) (I) SWEETENED FORAGE . . . . . . . . (II) OTHER PREPARATIONS (A) PREPARATIONS DESIGNED TO PROVIDE THE ANIMAL WITH ALL THE NUTRIENT ELEMENTS REQUIRED TO ENSURE A RATIONAL AND BALANCED DAILY DIET (COMPLETE FEEDS) The characteristic feature of these preparations is that they contain products from each of the three groups of nutrients described below : (1) " Energy " nutrients, consisting of high-carbohydrate (high-calorie) substances such as starch, sugar, cellulose, and fats, which are " burned up " by the animal organism to produce the energy necessary for life and to attain the breeders' 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 protei....
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....sisting of several mineral substances. (b) Preparations consisting of an active substance of the type described in (1) above with a carrier, for example products of the antibiotics manufacturing process obtained by simply drying the mass, i.e. the entire contents of the fermentation vessel (essentially mycelium, the culture medium and the antibiotic). The resulting dry substance, whether or not standardised by adding organic or inorganic substances, has an antibiotic content ranging generally between 8 % and 16 % and is used as basic material in preparing, in particular, " premixes ". . . . . . . . 8.1 The appellants state that CTH 2309 covers sweetened forage and prepared animal feeding stuffs consisting of a mixture of several nutrients designed:- (1) to provide the animal with a rational and balanced daily diet (complete feed); (2) to achieve a suitable daily diet by supplementing 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 a....
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....t from the fact that the product is recognized in the trade as squid liver powder. When it comes to classification of such mixtures, reliance should be placed on Rule 3(b) of General Rules of Interpretation of the Tariff (GRI) as the impugned goods are a mixture and it should be classified applying its essential character. We find that normally goods should be correctly classifiable by reference to Rule 1 alone. Only if results of this process are ambiguous and two or more Headings appear to be applicable, then Rule 3 need be applied. Hence Rule 3 of GIR shall be used only if classification under Rule 1 and 2 fail. The issue of essential character of the subject matter in question may be resorted to only if classification of a product under Rule 1 is impossible. We have earlier discussed that the squid liver powder was classifiable under CTH 2309 as 'preparations of a kind used in animal feeding' both by a plain reading of the Customs Tariff and 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....
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..... Vs. Collector of Central Excise - 1988 (38) ELT 571 (SC) (b) Madras Rubber Factory Ltd., Madras Vs. Superintendent of Central Excise, Madras and Others - 1986 (24) ELT 273 (Mad.) (c) Plasmac Machine Mfg. Co. Pvt. Ltd. Vs. Collector of Central Excise - 1991 (51) ELT 161 (SC) They have further referred to the following decisions stating that test reports which were not given to the appellant up to the SCN stage cannot be relied upon in the Order in Original. (a) Hindustan Fibres Ltd. Vs. CCE, Jaipur - 2009 (245) ELT 337 (Tri. De.) (b) Bee-Am Chemicals Ltd. Vs. CCE, Raigad - 2004 (167) ELT 534 (Tri. Mum.) (c) Essma Woollen Mills P. Ltd. Vs. CCE, Chandigarh - 2001 (134) ELT 262 (Tri. Del.) As discussed in para 9.1 above, we agree with the legal position that equality / precedent cannot be attributed in cases where wrong orders have been issued. Wrong decisions taken earlier cannot be binding precedents as there is no estoppel against law. Further, we 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....
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....bonic Pvt. Ltd. Vs. CCE - 2021 (8) TMI 240 - CESTAT Chennai (e) Hi-Tech Corporation Vs. Commissioner of Customs - 2021 (8) TMI 1214 - CESTAT Chennai in furtherance of their stand that department has accepted the classification for imports and a different stand cannot be taken for subsequent imports. The issue has been examined and discussed in para 9.1 above and we are unable to agree with the submissions made by the appellants in the light of the judgments of the Hon'ble Supreme Court cited therein. 12. In the light of the discussions above, we find that the classification of the 'Squid Liver Powder' has been correctly done under CTH 23099090 and hence the impugned orders are upheld. The appeals stand rejected. We hence order accordingly." 9.2 The appellant has repeated his plea, that the final order dated 22.06.2023 is beyond the original proceedings initiated under the demand notices. That when the OIO and OIA relies only upon the Chemical Examiner report (which was not provided to the Appellant) and the earlier consignments cleared by the appellant under 2309, the said order ought not to have upheld the ΟΙΟ/ΟΙ&....