COMMISSIONER OF CUSTOMS Vs. AVANTHI FEEDS LTD.

JUDGEMENT

(1.) THIS appeal of the Department is late by seven days only. After considering their explanation and hearing both sides, we condone this delay. One of the applications stands allowed. After hearing both sides on the remaining application for stay, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dismissing the application, we proceed to deal with the appeal.

(2.) THE respondents had imported 'South Chilean Fish Meal' and filed a Bill of Entry for its clearance under DEPB scheme claiming the benefit of Notification No. 20/2006 -Cus., dated 1 -3 -2006 (Sl. No. 15). The goods were assessed on this basis and clearance thereof allowed by the department treating the Bill of Entry live. Subsequently, consequent to certain audit objection, the department proposed to deny the benefit of the Notification to the importer by alleging that the item imported by them was not finished aquatic feed but only an input for its manufacture. This view of the department was upheld by the assessing authority and, accordingly, the assessment was finalized. The appeal preferred by the party against this assessment was allowed by the Commissioner (Appeals). Hence this appeal of the Revenue.

(3.) AFTER hearing both sides and considering their submissions, we note that the short question arising for consideration is whether the goods imported by the respondents would answer the description given at Sl. No. 15 in the Table annexed to the above Notification. This description reads as under: Sl. Chapter Description Rate No. Heading 15 Chapter 23 Aquatic feed, poultry feed NIL and cattle feed including grass, hay and straw, supplement and husk of pulses, concentrates and additives, wheat bran and de -oiled cake. Goods of the above description, falling under Chapter 23 of the First Schedule to the Customs Tariff Act, were exempted from payment of additional duty of customs leviable under Section 3 of the Customs Tariff Act, 1975, in terns of Sl. No. 15 in the Table annexed to the above Notification. It is not in dispute that the item imported by the respondents was falling under Chapter 23 ibid. The question to be looked into is whether it could be considered to be falling within the ambit of the above description of goods under the notification. According to learned SDR, who has reiterated the sole ground of appeal, the goods imported by the respondents was admittedly an input for the manufacture of shrimp feed and hence the same could, by no stretch of imagination, be accepted as shrimp feed itself. Both sides agree that shrimp feed is an 'aquatic feed'. It appears from the records that the assessee has been maintaining throughout that the fish meal imported by them was to be used as input in the manufacture of shrimp feed. However, their counsel would plead for the first time today that the fish meal imported by them was directly usable as feed for poultry and cattle. In the face of this claim, learned SDR would submit that such a claim is not liable to be accepted at this stage. It is her contention that the fish meal imported by the respondents would not be eligible for the benefit of the notification inasmuch as it is their consistent case that it was imported as an input for manufacture of shrimp feed. Learned SDR has referred to the definition of 'fish meal' found in S.B. Sarkar's 'Words & Phrases of Central Excise, Customs & Service Tax'. We have perused this definition which says, fish meal is available as dried fish or as fish meal or powder. This information taken from 'S.B. Sarkar', however, goes in favour of the respondents only inasmuch as fish meal is found to be available as fish meal or powder. Learned Counsel has today claimed the subject goods to be finished feed for poultry and cattle. This claim seems to be supported by 'S.B. Sarkar'. Learned Counsel has relied on HSN Notes under Heading 23, which say that "the flour, meals and pellets of this heading are used mainly in animal feeding, but may also be used for other purposes (e.g. as fertilizers)". S.B. Sarkar also indicates, by quoting from a publication of the Indian Council for Agricultural Research, that fish meal is also understood as manure. But all the authorities cited before us are unanimous on the point that fish meal is a feed for poultry and cattle. It appears from the description of goods given under the notification that even 'additives' for aquatic feed are also included within such description for the purpose of the benefit of the notification. In this view, of the matter, even if the earlier stand of the respondents that they had imported the item as input for the manufacture of shrimp feed is taken into account, it would get covered within the scope of the term 'additives' occurring in the description of goods at Sl. No. 15 in the Table annexed to the Notification. If the present contention of learned Counsel to the effect that the imported item is directly usable as feed for poultry and cattle is considered, then also the item would qualify for the benefit of the notification on the strength of the authorities [HSN & S.B. Sarkar] cited before us.