TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1641
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....facts having a bearing on the question(s) raised enclosed with the CAAR-1 applications: That the applicant proposes to import 'Arecanut' from Indonesia and other South East Asian countries. Arecanut is a tropical plant found all over South-East Asia. The tree belongs to the palm tree species and is from the Arecaceae family. The fruit (nut) of this tree is popularly known as the betel nut or 'supari' in India. The arecanut is an important commercial plantation crop. The fruit has a fibrous mesocarp and seeds are with a truncate base, endosperm deeply ruminates with a basalar embryo. It is also known as "betel nut" which is the kernel obtained from the fruit of arecanut palm. It is mostly used by people as masticatory and is an essential requisite during several religious, social and cultural functions in India. After harvesting, the tender nut is dehusked and then peeled. Thereafter, these are split and subjected to heat treatment and then dried. The processes mentioned above can be mechanical or manually carried out. For preservation of these nuts and to protect them from fungi and moulds and to prevent deterioration while in storage and for safe transportati....
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....tities of glucose syrup), provided that they retain the character of dried fruit or dried nuts. " Again, Chapter note (4) reads as follows: "4. Heading 0812 applies to fruit and nuts which have been treated solely to ensure their provisional preservation during transport or storage prior to use (for example, by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions), provided they remain unsuitable for immediate consumption in that state." Heading 0812 covers fruits and nuts provisionally preserved but unsuitable in that state for immediate consumption. Following are the four sub-headings under the above four-digit heading. 0812 10 00 - Cherries 0812 90 - Other: 0812 90 10 --- Mango slices in brine 0812 90 90 --- Other Though Arecanuts are separately mentioned under 0802, as nuts provisionally preserved but unsuitable in that state for immediate consumption, the arcanuts in the present case will answer more precisely the description under heading 0812 which occurs later in the schedule and accordingly, these nuts that are provisionally preserved need to be classified under heading 0812 90 90. 4. Tu....
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....ng no. CAAR/Del/Vaibhav/21/2021 in the case of M/s Vaibhav Enterprises "The CAA rejects the application of M/s Vaibhav Enterprises by giving the ruling that: API Supari, Chikni Supari, Boiled Supari, Boiled and Cut supari, unflavoured supari and flavoured supari, Roasted betel nut, merit classification under chapter 8 of the first schedule to the Customs Tariff Act and more precisely, under the heading 0802." 10. It is observed that several new applications are being submitted to circumvent the minimum import price and increasing tariff values by legalizing betel nut import through mis-declaration and mis-classification. The CAAR may not entertain such applications considering that several advance rulings have already rejected the classification of betel nut under chapter 0812, 2008 and 2106 in the interest of the local areca nut industry and to safeguard the interest of the revenue." 5. A personal hearing in the matter was conducted on 27.12.2023 in office of the CAAR, Mumbai. During the personal hearing the authorized representative of M/s. RADIANCE ENTERPRISES, Shri S. Murugappan, Advocate reiterated his earlier written submissions made in the applications to CAAR, M....
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....e scope of chapter note (4) to Chapter 8. The issue dealt in the above Tribunal decision is totally different and hence, the reliance placed by the customs on the above decision is thoroughly misplaced. In the same para (para 6) the customs also have referred to NCTC Mumbai analytical report suggesting classification of areca nuts under heading 0802 8010 (whole), 0802 8020 (split), 0802 8030 (ground) and 0802 8090 covering other types of areca nuts other than those mentioned above. At the outset, it is submitted that the so-called NCTC Mumbai analytical report referred to in this para has not been made available to the applicants. Hence, any reliance on the analytical report cannot be sustained. Again, to reiterate, it is not the case of the applicants that the areca nut imported by them will fall under these sub-headings and the reference here is not to provisionally preserved areca nut. Para 7- A wild statement is made that areca nuts in any form will be classified under 0802 80. In the same para it is contended that 0812 covers fruits and nuts provisionally preserved. In view of this, it is contended that when a definition with specific description is available, a gener....
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....he customs are trying to state. All provisionally preserved fruits and nuts are classifiable under 0812, if they meet the specifications laid down in chapter note (4) mentioned above. Therefore, it cannot be contended that the term "provisionally preserved areca nut" is not in accordance with law and any such contention is to be rejected. Para 9 - In this para, customs have relied upon a decision given in the case of M/s. Vaibhav Enterprises. Once again it is submitted that, that particular case again refers to the various types of supari and that they merit classification under chapter 8 of the schedule to the Customs Tariff Act. There is no discussion or decision with regard to provisionally preserved areca nuts with reference to chapter note (4) to chapter 8 of the Customs Tariff schedule. Hence, the reliance placed on the above decision is misplaced. Para 10 - A sweeping allegation has been made that applications are being submitted to circumvent the minimum import price. The customs authorities are required to contest the issue on merits and not make general allegations that applications are being submitted to circumvent the minimum import price. In the same ....
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....peared from both the concerned Jurisdictional Customs Commissionerate i.e. Chennai and Tuticorin during the said Personal Hearing online/in person. 7. The office of the CAAR, Mumbai forwarded the rebuttal dated 28.12.2023 received from the applicant to the Tuticorin Custom House for further comments on that, however, this office has not received any comments thereon from them till date. Further, vide an E mail dated 15.02.2024 the learned Advocate for the applicant has submitted that Sorbic Acid in the form of sorbates is a preservative used in food preparations as well as preserving edible fruits, vegetables, etc. In this regard, the learned advocate has submitted extracts from Public Notice dated 06.03.2020 issued from File No. 1- 1700/FASSAI/Imports/2017 by Food Safety and Standards Authority of India showing List of Mapped HS Codes with FSS Regulations and Food Code System as well as Extracts from Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. In the list of Mapped HS Codes, SI. No. 870 relates to ITC HS Code 0802 8010 covering edible fruits and nuts -areca nuts - whole and Sl. No. 1021 relates to ITC HS Code 0812 9090 covering "....
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....ification of Provisionally preserved Areca nut on the basis of the information on record as well as the existing legal framework having bearing on the classification of the Provisionally preserved Areca nut under the first schedule of the Customs Tariff Act, 1975. 9. The applicant has squarely answered the queries raised by the Tuticorin Custom House and also submitted the certificate issued by the Professor and Head of the Department of Food Process Engineering, College of Food and Dairy Technology, Koduveli, Chennai in support of their claim. This certificate of Tamil Nadu Veterinary and Animal Sciences University, College of Food and Dairy Technology states as follows: "The fruits and Nuts in general have a shorter life span and post-harvest they are preserved using preservatives like Benzoic Acid or Sulphur- di-Oxide gas which are basically used for inhibiting the growth of moulds and bacteria. The preservation process is done to ensure the fruits and nuts are not spoiled during transportation. These preserved products might have higher levels of SO2 or Benzoic acid. And they can be safely treated with Sodium Bi Carbonate (NaHCO3) and washed with plain water to remo....
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....preserved (e.g., by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions). Chapter 8 of the Customs Tariff Act, 1975 covers Edible fruit and nuts; peel of citrus fruit or melons and note (3) to chapter 8 provides as: "3. Dried fruit or dried nuts of this Chapter may be partially rehydrated, or treated for the following purposes: (a) for additional preservation or stabilisation (for example, by moderate heat treatment, sulphuring, the addition of sorbic acid or potassium sorbate); (b) to improve or maintain their appearance (for example, by the addition of vegetable oil or small quantities of glucose syrup), provided that they retain the character of dried fruit or dried nuts. " The chapter note 3 specifies the physical status of the goods along with corresponding processes that could be carried on those goods under this chapter. The areca/ betel nut is mentioned in Heading 0802 as well as 0812. The explanatory note to Heading 0802 states that this heading also covers areca (betel) nuts used chiefly as a masticatory. One of the main uses of the goods under CTH 0802 is masticatory. However, I find that the provis....
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....(SC), that "order of higher appellate authorities should be unreservedly followed by subordinate authorities. The mere fact that the order of the appellate authority is not "acceptable" to the department - in itself and objectionable phrase- and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assesses and chaos in administration of tax laws". Further, the Joint Secretary (Revision Authority) to Government of India in its Order No. 288/13-CX dated 25.03.2013 in the matter of The Commissioner of Central Excise, Thane- II Vs. M/s. P.D. Impex, Mumbai relied on the same. Para 9 of the said order is reproduced as under :- "Government observes that the department in this second round of revisionary proceedings is mainly contesting that they are filing Writ Petition against GOI Order dated 25.08.2009. This office vide letter F. No. 198/69/2004-RA-Cx dated 22.10.2012 specifically asked department to state the present status of the said Writ Petition. The department vide letter F. No. V(PKS/357....