Collector of Central Excise, Vadodara vs Alembic Chemicals Works Co. Ltd.>1997(06)LCX0021

1997(06)LCX0021

IN THE CEGAT, COURT NO. IV, NEW DELHI

S/Shri G.R. Sharma, Member (T) and A.C.C. Unni, Member (J)

COLLECTOR OF C. EX., VADODARA

Versus

ALEMBIC CHEMICALS WORKS CO. LTD.

Final Order No. 517/97-D, dated 20-6-1997 in Appeal No. E/4347/89-D

Advocated By : Shri G.D. Sharma, JDR, for the Appellant.

None, for the Respondents.

[Order per : G.R. Sharma, Member (T)]. - The issue for determination in the present appeal is the classification of product described as Promix-Y (veterinary tablets) as food supplement for cats and dogs. The assessee claimed classification of the product under Chapter Heading No. 2303.00 of the Central Excise Tariff. There is no Heading 2303.00 in the Central Excise Tariff. There is a reference of Chapter Heading No. 2302. The Chapter Heading 2302 describes the goods as “preparations of a kind used in animal feeding, including dogs and cats food.” The respondents were in a hurry to clear the goods, therefore, they made a request for assessment of the goods under Chapter 30. The Chapter 30 is for pharmaceutical products.The department after considering the various ingredients of the product had held that the product is classifiable under Chapter sub-heading No. 2107.91.

2. Shri G.D. Sharma, learned JDR appearing for the department submits that the product analysis shows that it contained 35% of proteins and carbohydrates 30% and since proteins predominates, therefore, the assessment of the product will be under Chapter Heading 2107.91 as edible preparations not elsewhere specified or included. The ld JDR refers to Note 5 of Chapter 21 wherein it has been provided that heading includes protein concentrates and textured protein substances. He submits that the edible preparation was nothing but protein concentrates and, therefore, the Assistant Collector has rightly classified the product under Chapter sub-heading 2107.91. He submits that the Collector (A) did not take into consideration the contents and their predominance in the product. He submits that the protein is predominating content of the product and in terms of Note 5 of Chapter 21, the product was rightly classifiable under Chapter Heading 2107.91. He, therefore, prays that the appeal may be allowed.

3. None appeared for the respondents. There is a request for adjournment of the case. However, having regard to the fact that the issue was a simple one and was covered by various clarifications issued by the Central Board of Excise and Customs, it was decided to proceed further in the matter.

4. On careful consideration of the submissions of the learned JDR as also the technical literature submitted by the respondents and also the description of the goods against various chapter headings, we find that the question of classification of food supplements for cats and dogs was examined by the Central Board of Excise and Customs from time to time. The Central Board of Excise and Customs clarified in their latest clarification as under :-

“Animal Feed- A doubt has been raised whether Animal Feed Supplements like Vitamin Mineral Feed (1) Kentab tablets and food additives for dogs (2) Fast track (3) Provitone (4) Biolact for poultry are classifiable under sub-heading 2107.91 or Heading 23.02 of CET.

The dog and cat biscuits and all other preparations for use on animal feeding are correctly classifiable under Heading 23.02 of the Central Excise Tariff - C.B.E. & C. Circular No. 18/89, dated 24-11-1989 - 1990 (45) E.L.T (T6).

Animal Feed Supplements - (1) It would appear that preparations containing the active substances (vitamins or provitamins, aminoacids, antibiotics, coccidiostats, etc.) along with the said carriers would fall under Heading 23.02 of the CET provided such preparations are a kind used in animal feeding. It may however be noted that Heading 23.09 of the HSN excludes products of Chapter 29 and medicaments of Heading 30.03 or 30.04. Hence, while deciding the classification of products claimed to be animal feed supplements, it may be necessary to ensure that the said animal feed supplements are ordinarily or commonly known in the trade as products for a specific used in animal feeding.

(2) In view of the foregoing discussions, the classification of each product being claimed as animal feed supplements may be decided on merits in the light of the above and in accordance with the explanatory notes to Heading 23.09 of HSN read with Chapter Note 1 of Chapter 23 of the CET.

(3) Board’s Circular No. 1/90, dated 1-1-1990 stands modified to the extent indicated above. - Based on C.B.E. & C. Circular No. 188/22/96-CX., dated 26-3-1996 - 1996 (083) ELT (T34)."

5. From this clarification, we find that Heading 23.09 of the HSN which is comparable to Heading 23.02 of the CET excludes the products of Chapter 29 and medicaments of Heading 30.03 or 30.04. Admittedly it is nobody’s case that the present products would fall under Chapter 29 or Heading 30.03 or 30.04. There are only two Headings 23.02 and 21.07. Clarifying the position about the preparations containing the active substances (vitamins or provitamins, aminoacids, antibiotics, coccidiostats, etc.) along with the said carriers would fall under Heading 23.02 of the CET provided such preparations are of a kind used in animal feedings, we find that the product is used in animal feeding and contained proteins. From the technical literature furnished by the manufacturer, we find that the product is meant for dogs and cats. Now examining whether in terms of Note 5 to Chapter 21, this product qualifies for classification under Chapter Heading 21.07, we find that the product becomes qualified for classification under Chapter 21.07 if it contains protein concentrates and textured protein substances. Simply because protein pre- dominating in the product, it cannot be termed as the product of protein con- centrates. The product is used as animal feed supplements for cats and dogs. There is a specific entry for this product under Chapter Heading 23.02. We also note that for classification of the product a specific entry prevails over a general entry. Having regard to the above discussions and clarification given by the Board, we hold that the product shall be classifiable under Chapter Heading 23.02. In the result the impugned order is upheld and the appeal is rejected.

Equivalent 1997 (94) ELT 383 (Tribunal)

Equivalent 1997 (022) RLT 0265 (CEGAT)