AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1643
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....i. 2. Applicant has stated as follows in their statement of relevant facts having a bearing on the question(s) raised enclosed with the CAAR-1 application: 2.1. The Applicant inter alia has been importing certain products constituting 'bovine serum albumin' for research purposes ('the products'). Such products are albumin proteins used for laboratory purposes such as for Bradford assay or the colorimetric technique for measuring the total protein concentration in a sample. Bradford assay method is a rapid and sensitive method for the quantification of microgram quantities of protein utilizing the principle of protein-dye binding. The products imported by the Applicant are for non-medical use and are not used for therapeutic or prophylactic purpose. List of Bovine Serum Albumin imported by the Applicant for research use is as follows: Sr. No. Product Number Description 1 10028711 BSA 20 MG/ML 2 201502 BOVINE ALBUMINE PH5, 2 LYO/1 KG* - ASP 3 424041 BSA (30%) monomer, IH 4 5000007 Protein Standard II, BSA lyophil, 20 ml 5 5000206 Quick Start Bovine Serum Albumin Std 6 5000207 Quick Start Bovine Serum....
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....Tax ('IGST') applicable on products imported under the relevant HS codes are as under: HS code Tariff Rate of BCD Effective Rate of BCD Rate of SWS Rate of IGST Effective rate of duty 3003 9031 10% 0% [Notification 50/2017-Customs dated 30 June 2017 - Sr. No. 167 (List 4(16)] 0% 5% 5% 3502 9000 20% 20% 10% 18% 43.96% 3. The applicant has further submitted their interpretation of law as follows: The products fall under the category of 'bovine serum albumin'. Albumin is a type of protein that is soluble in water and half saturated with a salt such as ammonium sulfate. Serum albumin is a component of blood serum. Hence, the products imported by the Applicant qualify as 'blood albumin'. Further, the products are not used for therapeutic or prophylactic purpose post-importation. Note 1(h) of Chapter 30 of the Customs Tariff specifically excludes 'blood albumin not prepared for therapeutic or prophylactic uses'. The terms 'therapeutic' and `prophylactic' has not been defined under the tariff entry. Observing the same, Hon'ble Supreme Court, in the case of Commissioner of Central Ex....
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....d rules of interpretation." It is a settled principle of interpretation that something which is specifically excluded from a chapter cannot be included therein. In this context, reliance is placed on case of Intel Design Systems (India) Pvt. Ltd. vs. Commissioner of Customs, Supreme Court [2008 (223) E.L.T. 135 (S.C.)], wherein the Hon'ble Supreme Court held that if any goods fall under the category of chapter exclusions, it cannot be classified thereunder even if there is a specific entry for such goods at 8-digit level. Further, in the case of Hero Motorcorp Ltd. vs. Commissioner of Customs, CESTAT Mumbai [2021 (12) TMI 490], it was held that even if description of a tariff item corresponds to description of goods, it will not be accepted if such goods are excluded from Section Notes based on 'end use'. Reference is invited to the ruling in the case of A. N. Instrument vs Collector of Customs [1999 (110) ELT 823] wherein Delhi Tribunal pointed out that (in relation to product under dispute in that case), heading 73.20 has an exclusion clause. In the said case, the departmental officers had missed the fact that the customs case is hit by this exclusion clause ....
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....for any goods to be classified under heading 3003. In the case of Commissioner of Central Excise vs. M/s. Ciens Laboratories, Supreme Court [2013 (295) ELT 3], it was held by the Hon'ble Supreme Court that even if a product constitutes pharmaceutical ingredients having therapeutic or prophylactic properties, it will not be construed as a 'medicament' covered under heading 3003, if it is not used primarily for curing or treating ailments or diseases. Relevant extract of the judgment is reproduced below for ease of reference: "Firstly, when a product contains pharmaceutical ingredients that have therapeutic or prophylactic or curative properties, the proportion of such ingredients is not invariably decisive. What is of importance is the curative attributes of such ingredients that render the product a medicament and not a cosmetic. Secondly, though a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics. There are several products that are sold over-the-counter and are yet, medicaments. Thirdly, prior to adjudicating upon whether a pro....
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....ee themselves clearly printed in the literature as well as on the product package that these are not drugs and not intended to diagnose, treat, cure or prevent any disease. The product as packed and marketed should be considered for classification. When the appellant-assessee themselves claimed that these are not for curing or treating any disease, the question of considering them as medicaments does not arise." Similar view was taken by the judiciary in the following cases: - Supreme Enterprises vs. Commissioner of Customs, CESTAT Mumbai [2015 (316) E.L.T. 274 (Tri. - Mumbai)] - M/s Focus Brands Trading (India) Pvt. Ltd. vs. Union of India, Delhi High Court 12019 (5) TMI 793] The Applicant submits that the products are manufactured, imported and intended to be supplied for 'research use only' and not for medical use. Hence, classification of the products cannot be considered under the category of 'medicaments' as provided under heading 3003. Supplier's declaration stating that the products are for 'Research Use Only (RUO)' is enclosed with the application. Reliance is placed in the case of Hero Motorcorp Ltd. vs. Commissioner ....
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.... code 3502 9000, then also the appropriate entry for the products will be latter. In this regard, it is pertinent to mention Rule 3(c) of the General Rules of Interpretation to the Customs Tariff The said Rule 3(c) thereof states that when goods are prima facie, classifiable under two or more headings, they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. Applying the said principle provided in the Rules, the most appropriate tariff heading for the products imported by the Applicant would be HS code 3502 9000, as it numerically occurs last among the relevant HS codes. 4. The Jurisdictional Commissionerate has submitted their comments dated 18.01.2024 in the office of the CAAR, Mumbai on the application as follows: "As per available records applicant has a valid IEC code IEC No. 0596039981 vide which they carry out import export business from India. Hence, they eligible of being applicant in terms of section 28-E (c) of the Act. The nature of activity on which advance ruling has been sought by the importer is import of "bovine serum albumin" for research purpose. Based on the documents shared by AAR....
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....s 'Bovine Serum Albumin' which is not to be used for therapeutic or prophylactic purposes and to be used as laboratory/research purpose only. He gave references of Chapter note 1(h) of Chapter 30 and submitted that subject import goods merit classification under CTI 3502 9000 and not under chapter 30. He also relied upon the General Interpretation Rule (latter the better). He also relied upon the case laws in the matter of Commissioner of Customs vs. Ciens laboratories (SC), Intel design system Pvt. Ltd. Vs. Commissioner of Customs (SC) and US ruling No. N144322. Shri Rajesh V. Shelke, Addl. Commissioner of Customs, Air Cargo Complex, Chennai attended the said personal hearing through online video conferencing. He submitted that the said goods can be classified under CTI 3502 9000 only if the same are not used for therapeutic or prophylactic purposes. 6. I have taken into consideration all the materials placed on record in respect of the subject goods including the submissions made by the applicant and Shri Rajesh V. Shelke, Addl. Commissioner of Customs, representative of Air Cargo Complex, Chennai during the course of personal hearing. I have also gone through the r....