SUNNEX COMMERCIAL PRIVATE LTD. Vs. CC

JUDGEMENT

(1.) THE appellants had imported goods described as "Thiamine Mono (concentrate extract for animal feed)" and filed two Bills of Entry, one dated 7.6.99 and the other dated 30.6.99, for clearance of the goods under SH.2309.90 of, the CTA Schedule without import licence. Goods falling under the said tariff entry were freely importable. It appeared to the assessing, authority that the goods were classifiable under SH 2936.22 of the CTA Schedule and ITC EXIM Code 2936 2200 10 and hence could be imported only against specific import licence. The assessee contested this view of the assessing authority by submitting that vitamin mixed with other ingredients had been held to be 'animal feed ' classifiable under SH 2309.90 of the CTA Schedule, by this Tribunal in the case of M/s. Tetragon Chemie (P) Ltd. There upon, provisional clearance of the goods was allowed against execution of test bond and production of Bank Guarantee for differential duty. The department's Chemical Examiner, who tested a sample of the goods covered by Bill of Entry' dated 7.6.99, reported thus - 'The sample is in the form of off white powder . It is composed of organic compound (Thiamine mononitrate) and additives. With reference to the query as to use of the goods, the test report advised that its actual use be ascertained. After considering the test report and hearing counsel for the assessee, learned Commissioner of Customs classified the goods as "Thiamine mononitrate (Vitamin B1)" under SH 2936.22, an item restricted for import. He, further, held their goods to be liable for confiscation under Section 111(d) of the Customs Act as it had been imported without specific import licence. The Commissioner imposed a redemption fine of Rs.2,30,000/ - each in lieu of confiscation of the goods covered under the two Bills of Entry. The present appeal is against the Commissioner's order.

(2.) HEARD both sides. It was submitted by learned consultant that, in view of apex court's decision in the case of Sun Export Corporation v. Collector of Customs , the subject goods could only be classified as "animal feed' under SH 2309.90 and hence its import without licence was in accordance with law. Ld.consultant also claimed support from the test report which stated that the goods was composed of Thiamine mononitrate and additives . Reference was also made to the "Certificate of Analysis" received from the supplier's end, which indicated Thiamine mononitrate' content of 90 -92 9fc only. Further, literature received from the supplier's end indicated use of the subject goods as "Animal feed nutrition : Premixes and Compound feeds". On the basis of these data, it was argued that the goods imported could only be classified under Heading 23.09 as "preparations of a kind used in animal feeding". The presence of additives as reported by the Chemical Examiner was enough to rule out classification of the goods under Heading 29.36. Ld. SDR reiterated the findings of the Commissioner.

(3.) WE have carefully considered the submissions. The dispute is one about the classification of the goods imported by the appellants. The party classified it under Heading 23.09 as ''preparation of a kind used in animal feeding". The department wanted to classify it under Heading 29.36 and SH 2936.22 as Vitamin B1 . The supplier's invoice produced by the party described the goods as "Thiamine Mono (animal feed grade)". The Certificate of Analysis produced along with the invoice provided the following composition: