RAYMON GLUES AND CHEMICALS Vs. UNION OF INDIA

JUDGEMENT

(1.) M/s. Raymon Glues and Chemicals engaged in the business of manufacturing of Di-calcium phosphate having a factory was being subjected to the provisions of Central Excises And Salt Act. The respondent classified the Dicalcium phosphate manufactured by the petitioner under Chapter 28 of the Central Excise Tariff Act, 1985 (hereinafter referred to as 'the Tariff Act') though the same is classified under Chapter 23 of the Tariff Act by Customs, Excise and Gold (Control) Appellate Tribunal whose decisions are final by virtue of Sec. 35C(4) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). The grievance voiced by the petitioner is that despite the decision of the Tribunal which has become final, the Central Board of Excise and Customs (hereinafter referred to as 'the Board'), by issuing circular vide Annexure 'D', has tried to nullify the effect of the decision of the Tribunal which according to the petitioner, amounts to indirect legislation by circulars. The subject-matter of the circular dated 3-3-1997 issued by the Board under Sec. 37-B is produced at Annexure 'D'. It was represented to the Board that there is no uniformity in the classification of Dicalcium phosphate of animal feed grade for the purpose of levy of Central Excise Duty in the Schedule to the Tariff Act. It was represented that in some Commissionerates the product is classified under heading 23.02 whereas in some other Commissionerates under heading 28.35 of the Tariff Act. In para 9 of the circular, the Board ordered that D.C.P. of animal feed grade (IS: 5470-1969) shall be classifiable under heading 28.35 of the Tariff Act. According to the petitioner, Chapter 23 refers to residues and wastes from the Food Industries; prepared animal fodder, which includes products of a kind used in animal feeding, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material, other than vegetable waste, vegetable residues and by-products of such processing. Heading 23.02 under sub-heading 2302.00 gives description of goods as "preparations of a kind used in animal feeding, including dog and cat food". So far as Chapter 28 is concerned, it refers to inorganic chemicals, organic or inorganic compounds of precious metals, of rare-earth metals, of radioactive elements or of isotopes. Sub-heading 2835.00 under heading 28.35 gives description of goods as "Phosphinates (hypophospites), Phosphonates (Phosphites); Phosphates and Polyphosphates".

(2.) Mr. P. M. Dave, learned Advocate submitted that in view of the orders passed by the Tribunal, the circular requires to be quashed as by that circular, the Tribunal's judgment and order cannot be set aside, more particularly, in the instant case, when against the order of the Tribunal under Sec. 35L of the Act, statutory appeal being Civil Appeal No. 2076 of 1998 was preferred which has been dismissed by order dated 5-11-1998 by the Apex Court.

(3.) The Commissioner (Appeals), Ahmedabad, followed the decision in the case of M/s. Punjab Bone Mills and M/s. Protinkem v. Collector of Central Excise, Chandigarh, reported in 1988 (39) ELT 389 (Tribunal), wherein it was held that Di-calcium phosphate (D.C.P.) manufactured is classifiable under sub-heading 2302.00. He took the view that the product is classifiable under heading 23.02 and not under any other heading or sub-heading. The Commissioner (Appeals) has taken the view that the product is animal feed. The decision rendered by the CEGAT in case of Punjab Bone Mills (supra) is placed on record vide Annexure 'B', at page 25 of the petition. Before the Commissioner (Appeals), the necessary material was produced and as the product of Di-calcium phosphate which was confirming IS : 5470-69 namely; animal feed grade under the old Central Excise Tariff Clarification issued by the Board, the CEGAT's decision in the case of Punjab Bone Mills (supra), assessment of other Commissionerates etc., the Asstt. Commissioner's order was set aside and the appellant's appeal was allowed by the Commissioner (Appeals). This decision was also considered by the CEGAT's West Regional Bench at Bombay in appeal preferred against the present petitioner by the Commissioner of Central Excise, Baroda. The product was held as classifiable under heading 23.02 by the Tribunal. It was pointed out that the classification by the respondents claiming under heading 23.02 has been considered in favour of the present petitioner. The product was animal feed grade. It was correctly classified under heading 23.02. Reliance was placed on the decision reported in Collector of Central Excise, Chandigarh v. M/s. Punjab Bone Mills, 1994 (70) ELT 234 (Tribunal) where the Tribunal has held that D.C.P. is classifiable under heading 2302 and not under Chapter 31 of the Tariff Act. Before the Tribunal, reliance was placed on the Apex Court's decision in the case of Sun Export Corporation v. Collector of Customs, Mumbai, reported in 1997 (93) ELT 641 for the proposition that the classification of D.C.P. animal feed grade would be justified considering the maternal as cattle feed. Considering the material and the law laid down by the Apex Court and the views expressed by the Tribunals, the Tribunal in the instant case pointed out, that the classification of D.C.P. animal feed grade under heading 23.02 has been confirmed by the Tribunal in more than one of its decisions consistently. Thus, the Tribunal, opined that there is no reason to interfere with the conclusion of the Commissioner (Appeals) wherein it is held that the goods in question are correctly classifiable under subheading 2302.00 of the Tariff Act. This decision was carried in appeal before the Apex Court. As we have pointed out earlier, the decision of the Tribunal has been confirmed.