AI OCR 
TaxTMI 
TaxTMI 
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2026 (4) TMI 167
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....01.2024 09.01.2024 Duty demand Rs.34,86,146/- Rs.14,40,032/- Rs.8,45,818/- 1.1 The appellant imported "YARALIVA Nitrabor Calcium Nitrate with Boron (double salt of calcium nitrate with boron)" from its group company and classified the same under CTH 31026000 of the Customs Tariff Act, 1975. The appellant assessed said goods by claiming benefit of concessional rate of duty at Sr. No. 225(I)(b) of Notification No. 50/2017-Cus. dated 30.06.2017, which reads as under:- Sr. No. Chapter or Heading or sub-heading or tariff item Description of goods Standard rate 225 31 I. The following Water-Soluble Fertilizers included in Schedule-1, part A of the Fertilizers Control Order, namely:- (b) Calcium Nitrate 5% 1.2 As per revenue, benefit of above Notification is not available to the appellant as the product "YARALIVA Nitrabor Calcium Nitrate with Boron (double salt of calcium nitrate with boron)" imported by them is other than Calcium Nitrate and the said Notification grants benefit of concessional rate of duty to only Calcium Nitrate. The department issued three show cause notices to the appellant (two of dated 27.08.2020 and third one dated 30....
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....-LB) e) Neelkanth Polymers Vs. CC, Kandla-2009 (90) RLT 188 (Tri. Ahmd.) * "Yaraliva Nitrabor" imported by them is a water-soluble fertilizer containing calcium nitrate as a major ingredient. Therefore, it is eligible for exemption under Serial No. 225 (I) (b) of Notification No.50/2017cus. * The exemption under Sr. No. 225(I)(b) of Notification No.50/2017-Cus. is available to water soluble fertilizers mentioned in Customs Notification which are also included in schedule I, Part A of the Fertilizer Control Order. Calcium Nitrate fertilizer is specified as water soluble fertilizer in Customs Notification. This Sr. No. also grants exemption to other fertilizers which comply to the specific composition of potassium nitrate (13:0:45), but no such requirement is mentioned for Calcium Nitrate which means that exemption shall be extended to all fertilizers which contain calcium nitrate as major constituent and are water soluble, irrespective of other miniscule ingredients. * The presence of miniscule quantity of boron does not alter the character of fertilizer being a calcium nitrate fertilizer. As per Rule 3(a) of the Interpretative Rules to Customs Ta....
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.... b) Commissioner of Sales Tax, Madhya Pradesh Vs. Jaswant Singh Charan Singh reported AIR 1967 SC 1454: "'Charcoal was held to be included in 'Coal' in commercial sense even though technically Coal is a Mineral Product while Charcoal is manufactured by Human Agency." c) South Bihar Sugar Mills Ltd Vs. Union of India reported in 1978 (2) ELT 336: "What a Sugar manufacturer produces was held to be known as 'Kiln Gas' and not Carbon Di-Oxide even though one of its constituents was Carbon Di-Oxide." * The impugned Orders-in-Appeal are therefore wrong in upholding the order of the lower authority of denying benefit of above Notification and confirming duty demand. * Interest under Section 28AA of the Customs Act, 1962 is not demandable when demand itself is not sustainable. They rely on the decision of Hon'ble Supreme Court in the case of Pratibha Processors Vs. UOI-1996 (88) ELT 12 (SC) where it is held that when duty is not payable due to exemption, there is no occasion or basis to levy any interest, either. * In view of the appellant prayed for setting aside the impugned order to the extent it is against the appellant and a....
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....ioner of Customs (Import), Mumbai Vs. Dilip Kumar & Company reported at 2018 (361) E.L.T. 577 (S.C.) which has held as under- "Tax exemption under a Notification - Burden to prove for its entitlement is on assessee claiming exemption. If there is any ambiguity in exemption Notification, benefit of such ambiguity cannot be claimed by assessee and it must be interpreted in favour of Revenue." 4.1 Referring to the decision of Hon'ble Supreme Court in the case of Jain Shudh Vanaspati Limited (cited supra), he pleads that show cause notice under Section 28 of the Customs Act, 1962 for demand of duty can be issued without revising under Section 130, order of clearance passed under Section 47 of Customs Act, 1962. In view of these submissions, he prays for upholding the impugned orders by setting aside the appeals of the party. 5. We have considered the rivals submission. The short issue to be decided in this case is whether the appellant is entitled to the benefit of Entry No.225(I)(b) of Notification No.50/2017-Cus dated 30.06.2017 for their product "YARALIVA Nitrabor Calcium Nitrate with Boron (double salt of calcium nitrate with boron)" imported under various Bills of E....
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....mporter. Per contra, the other provisions related to duty not paid and short paid would apply to the importer. We also find merit in the assertions of the Learned Authorised Representative that even in the Apex Court judgment in the case of M/s. Priya Blue Industries Ltd. (supra) has validated the disturbance of an order of assessment by review under section 28 of the Customs Act, 1962. In our opinion, therefore, the ratio laid down by M/s. Priya Blue Industries Ltd., (supra) will not help the case of the appellant herein.-There cannot also be any dispute that the exemption provided in the Notification No. 67/2006-Cus., would never have been eligible' or applicable to goods imported from Pakistan. By seeking to setting aside the appropriate demand of duty in respect of four bills of entry, the appellant is only seeking to wrongly benefit indirectly what they are not entitled to directly. In the circumstances, no merit is found in the appeal, for which reasons, it is dismissed." 5.2 We also rely on the decision of CESTAT Delhi in the case of Vivo Mobile India Pvt. Ltd. Vs. Principal Commissioner of Customs, New Delhi reported at (2024) 20 Centax 393 (Tri.-Del) which also held tha....
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....e are of the view that Boronated Calcium Nitrate imported by the appellant is a different product than Calcium Nitrate and therefore, the product is not eligible to concessional rate of duty under Entry No.225(I)(b) of Notification No.50/2017-Cus. We place reliance on the decision of Hon'ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. Dilip Kumar & Company (cited supra) which has held that in case of tax exemption under a Notification, burden to prove for its entitlement is on assessee claiming exemption. If there is any ambiguity in exemption Notification, benefit of such ambiguity cannot be claimed by the assessee and it must be interpreted in favour of the revenue. The above settled legal proposition has been held in a catena of decisions. We also find that Hon'ble Supreme Court in the case of Krishi Upaj Mandi Samiti Vs. CCE, Alwar reported at 2022 (58) GSTL 129 (SC) has held the same again. Relevant paras are reproduced below:- "8. The exemption notification should not be liberally construed and beneficiary must fall within the ambit of the exemption and fulfil the conditions thereof. In case such conditions are not fulfilled, the issue o....