TaxTMI 
TaxTMI 
2004 (4) TMI 142
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....orters invited displeasure by declaring the goods as pippali, a Sanskrit word for long pepper though both mean the same according to the authorities on the subject. We also agree that pippali and long pepper mean the same. 3.Chapter Sub-headings 09.04 and 12.11 are the rival entries in the Customs Tariff. The rival entries in the tariff are annexed to this order along with Chapter Note 2 and supplementary note of Chapter 9. 4.Learned Advocate Shri V. Sridharan along with Shri J.C. Patel, Advocate, appeared for the appellants and Shri Ajay Saxena, SDR, for the Revenue. 5.Heard both sides. 6.We would examine the coverage under Chapter sub-heading 09.04 read with supplementary note and Chapter Note 2 of the heading and see whether pepper longum (long pepper) falls under this chapter. The supplementary note to Chapter 9 clarifies what the legislature means by the word 'spices' appearing in the chapter heading. One can safely substitute the word 'spices' with the supplementary note to understand the purport and the meaning of this word. Having defined the spices so, the legislature goes on to mention pepper long under chapter sub-heading 090411.10 leaving nobody in doubt tha....
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....atic and is sweeter than common pepper. Pepper cubeba being what it is, is excluded from Chapter 9 whereas long pepper is not. But India Materia Medica by Dr. K.M. Nadkarni says that pepper cubeba is used as a condiment and as carminative spice. Opinions differ. What is condiment to some is medicine to others. The second part of this chapter note says the products of Heading 12.11 are excluded from Chapter 9. We will examine the products covered under Chapter Heading 12.11 a little later. 9.A point is also made by the learned Advocate that HSN Explanatory Notes under Chapter 9 says "certain fruits, seeds and parts of plants which although they can be used as spices are more often employed in perfumery or in medicines (Heading 12.11) e.g., cassia pots, basil, borage, hyssop, all spices of mint rue and sage. This exclusion clause read with Chapter Note 2, the learned Advocate argues, clearly points out that products falling under Heading 12.11 are excluded from Chapter 9. We observe that these two notes (Chapter Note 2 and exclusion note) cannot be read to mean that the chapter excludes even those products which are specifically mentioned under Chapter Heading 9. It cannot be the ....
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....ote is that specifically described products in other headings even if suitable for use in perfumery and pharmacy are excluded from Chapter Heading 12.11. It is nobody's case that long pepper is specifically not included in Chapter Heading 09.04. Once it is so, they have to be classified there only. 12.The case law cited by the learned Advocate has been considered by us. None of it is on the subject of classification of long pepper, though some of it certainly says that classification should be decided on what the people in the region understand a product to be (toffees and mithais etc.). It is highly debatable as to what the public opinion is about this product (long pepper) in the absence of any opinion poll on the subject. A few experts in Ayurveda may know the significance of pepper longum and its medicinal properties, but a considerable number of people in India may think it to be a condiment even though it is beyond their reach. What, with the price of long pepper declared at US $ 700 PMT and loaded to US $ 835 PMT with 70% import duty. Not within the reach of a common man or even uncommon one for that matter. 13.Way back however, a Bench of this Tribunal consisting of t....
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....d. It was also suggested in the show cause notice, that as per NIDB of Directorate of Valuation a similar consignment was imported and cleared under Bill of Entry, dated 7-1-2003 for US $ 1150. During the course of adjudication however, the Commissioner discarded this value and adopted US $ 835 as that value has been accepted by the present importers even though they declared US $ 700 PMT. The appellants' contention is that such an enhanced value, US $ 835 cannot be treated as transaction value of identical goods and so cannot be the basis of determination of value under Rule 5. 18.We have examined the rival contentions. The Commissioner rejected the transaction value, proceeded to invoke Rule 10A and determined the value as US $ 835 for two reasons. The first is that the sale contracts which were produced by the appellants in response to a query memo cannot be correlated to the invoices under dispute. Secondly, the value of US $ 835 was accepted as the transaction value by the appellants in previous imports which were proximous to the present imports. In our view the Commissioner was right in rejecting the transaction value in the case of the appellants when he had data availab....