TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 630
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....ppears to have replied that the product is a 'salt of Levocarnitine, used in small quantity as additive in foods and other applications.' The Revenue however, appears to have given a go-by to the said expert opinion which was sought by the Revenue and proceeded on the assumption that the impugned goods were "food supplements" classifiable under Tariff item 2106 9099. 3. The above assumption of the Revenue thus resulted in the issuance Show Cause Notice dated 05.01.2023, inter alia proposing to reject the declared classification of the impugned goods under Heading 2923 9000 etc., proposing to reclassify under Customs Tariff Heading 2106 9099 and demanding differential duty on account of reclassification. It appears from record that the Appellant did defend its classification vide their reply dated 25.08.2023 but however, not satisfied with the explanation the Original Authority/Adjudicating Authority vide impugned Order-In- Original No. 103306/2023 dated 27.10.2023 proceeded to reject the classification declared by the Appellant, reclassified the subject goods as proposed in the Show Cause Notice and also demanded differential duty as proposed. It is against this order that the p....
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....ported. vi) Heading 2923 of HSN / CTA reads as below:- 2923 QUATERNARY AMMONIUM SALTS AND HYDROXIDES; LECITHINS AND OTHER PHOSPHOAMINOLIPIDS, WHETHER OR NOT CHEMICALLY DEFINED 2923 10 00 - Choline and its salts 2923 20 - Lecithins and other phosphoaminolipids: 2923 20 10 --- Lecithins 2923 20 90 --- Other 2923 3000 - Tetraethylammonium perfluorooctane sulphonate 2923 4000 - Didecyldimethylammoniumper fluorooctane sulphonate 2923 90 00 Other vii) The product literature of M/s. Tokyo Chemical Industry lists L-Carnitine and L-Carnitine L-Tartrate under Quarternary Ammonium salts. viii) L-Carnitine and Levocarnitine L-Tartrate are assessed by Indian Customs under Heading 2923 9000 as "Quarternary Ammonium Salts" and there is no dispute on the classification of this item because of which, there is no tariff circular/ tariff advice, case laws or classification of these items by the Indian Customs. ix) The Appellant submit that the U.S. Customs in their Rulings (i) NYE88640 dated 08.12.1999; (ii) NY80631 dated 11.01.2000; and (iii) No.11436 dated 01.06.2007 has held th....
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....nue has not discharged the burden of justifying the classification confirmed in the order as held in the cases of M/s. H.P.L. Chemicals Ltd. Vs. Commissioner of Central Excise, Chandigarh [2006 (197) ELT 324 (SC)]; M/s. JaiKunkan Foods Vs. Commissioner of Customs, NCH, New Delhi [2023 (385) ELT 738 (Tri. - Del.)] and M/s. Wrigley India Pvt. Ltd., Vs. Commissioner of Customs (Import), Chennai [2024 (389) ELT 194 (Tri. Chennai). xvii) Goods were allowed clearance only on examination and order by the Assistant Drug Controller and 17 consignments were allowed clearance only after examination of a consignment. Hence, as held in the case of M/s. New India Shipping Services [2016 (333) ELT 170 (Tri. - Bang.)], extended period of limitation cannot be invoked. xviii) When goods are not available, no order as to confiscation and fine be imposed, as held in the cases of Commissioner of Customs (Import), Mumbai Vs. M/s. Finesse Creation Inc. [2009 (248) ELT 122 (Bom)]; Commissioner Vs. M/s. Finesse Creation Inc. [2010 (255) ELT A.120 (SC)]; M/s.UM Cables Ltd., Vs. Commissioner of Customs (Export), Raigad [2022 (381) ELT 98 (Tri. Mumbai)]; and Commissioner of Customs (Im....
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....1193 (91) STC 565]; (e) Camlin Ltd. [(2015) (55 taxman.com 369]; (f) Chemical and Fibres of India vs UOI and Others [1997 (89) E.L.T.633 (S.C)]; and (g) M/s. Human Health Distribution Vs. Commissioner of Customs, Patparganj [2024 (4) TMI 697-CESTAT, New Delhi]. ix. Extended period of limitation has therefore been rightly invoked. 7. We have heard the rival contentions, carefully perused the documents placed on record and also various decisions/orders relied upon during the course of arguments before us. The only issue that arises for our consideration is, whether Levocarnitine and Levocarnitine L-Tartrate are correctly classifiable under CTH 29239000 as 'Quarternary Ammonium Salt/Compound-an organic compound' or under CTH 21069099 as 'food preparation not elsewhere specified or included'? 8. It is the fundamental principle of law that the burden of proof in he who disputes; so, when the Revenue does not accept a classification declared by an Assessee, rather proposes to reclassify under different heading, then it is for the Revenue to not only disprove the classification adopted by the Assessee, but also to prove with evidence as to w....
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....nium salts'. Even in the impugned order, it appears that the Original Authority had raised a doubt about accepting Levocarnitine L-Tartrate-LCLT as 'separate chemically defined organic compound' as defined under Note1(a) of chapter 29 but this view of the Original Authority is not backed by any material, much less even an expert's opinion. Strangely, however, the Original Authority has not raised such doubt with respect to 'Levocarnitine'. 11. The Appellant has claimed that there is no dispute about the classification of these items in other ports/airports in the country and, hence, they could not provide any tariff rulings/case laws. This is not controverted by the Revenue. 12. The Appellant has thus referred to U.S. Customs Rulings [Supra] on Levocarnitine as per which, quaternary ammonium compound is Classifiable under Heading 29239000. They have also submitted that the above Ruling came to be confirmed by the U.S. Court of International Trade. 13. Similarly, the Appellant has also referred to a Ruling by the Canadian Customs [Supra] wherein, it is held that LCLT is a quaternary ammonium salt and meets the requirements of Note 1(a) to chapter 29 viz., 'separate chemical....
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....se of Commissioner of Customs Vs M/s. Sony India Ltd., [2008(231) E.L.T.385 (S.C.)] has held that '...it is a settled position that in law that articles to be assessed in the form in which they are imported and presented to the customs...'. In the case of M/s. Akbar Badruddin Jwani Vs Collector of customs [1990(47) E.L.T. 161 (S.C)] has held that '.....when the tariff entry is used in a scientific or technical sense, common parlance test is not applicable...'. 17. Further, we also note that there are a catena of orders based on the decision of the Supreme Court in the case of Collector of Central Excise, Shillong Vs. M/s. Wood Crafts Products Ltd.,[1995(77)ELT 23 (S.C)], holding that when the tariff is based on HSN-EN, the classification has to be determined as per the provisions of HSN, unless there is an express intention indicted in the tariff. We find from the impugned order that the Revenue has referred to some websites to deal with these goods as 'food preparations' ignoring the provisions of tariff itself. It is useful in this context, to refer to the binding ratio laid down by the Apex court, in Hewlett Packard India Sales Pvt. Ltd. & Lenovo (India) Pvt. Ltd. [supra], to....