1992(11)LCX0028

BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI

S/Shri K.S. Venkataramani, Member (T) and S.L. Peeran, Member (J)

HARISONS

Versus

COLLECTOR OF CUSTOMS

Order No. C/517 to 522/92-D, dated 11-11-1992 in Appeal Nos. C/1961/91-D, C/1311 to 1313/87-D and C/8 & 9/92-D

Cases Quoted

Collector v. Hindustan Pulverising Mills (P) Ltd. - 1991(07)LCX0057 Eq 1992 (057) ELT 0428 (Tribunal)..... [Para 6]

Randip Shipping and Transport Co. P. Ltd. v. Collector - 1989(03)LCX0029 Eq 1989 (041) ELT 0392 (Born.) [Para 6]

Advocated By : Shri A.R. Madhav Rao, Advocate, for the Appellants.

Shri J.N. Nair, D.R., for the Respondents.

[Order per: S.L. Peeran, Member (J)]. - In all these appeals, a common question of law and facts arises and hence they are taken up together for disposal as per law.

Appeal C-1311 to 1313/87-D

The importer imported in this case Star Aniseed and filed three bills of entry Nos. C-871/23/5/85; C-373/10/10/85 and C-549/14/6/85. The same were assessed to duty under Heading 09.04/10(1) of Customs Tariff Act, 1975. They filed three refund claims seeking refund on the ground of reclassification of the impugned goods under Heading 12.07 read with Notification No. 48/79 and made a contention that the item ‘Star Aniseed’ is a crude drug for use in the preparation of Ayurvedic/Unani systems of medicine and that it is used primarily in pharmacy.

2. The Assistant Collector in the order-in-original held that although it is not disputed that the item being used in Pharmacy but the item has got alternative uses in preparation of food as spices and has quoted ‘The Indian Materia Medica’ book, which spells out that ‘seed is chewed with betalnut employed in confectionary and for distillation and as a condiment’. The Asstt. Collector has further held that the release of goods under OGL as an item of crude drug does not mean that the goods are primarily used in pharmacy, as it found use in the pharmacy also, the OGL benefit had been extended.

3. On appeal, the Collector (Appeals) reversed this order and upheld the importer’s contention. Hence the Revenue has appealed before the Bench. The Collector (Appeals) has allowed the classification under Heading 12.07(2) in view of primary use in pharmacy. The Revenue is contending that at page 675 (Entry 1288) of the Indian Materia Medica deals with Iillicum Verum (Family No. Magnoliaceae) which in English is known as ‘Star Anise’ and, in persian ‘Badian-i-Khathai’, while the text relied by the lower authority on page 955 (Entry 1908) of ‘Indian Materia Medica’ which deals with Pimpinella Anisum (Family No. Umbelliferae) which in English, is known as ‘Anise’ and in persian ‘Badian’. The Revenue are seeking the help from the CCCN Explanatory Notes of Chapter 9 which under the ‘General’ reads as under -

“Spices i.e. a group of vegetable products (including seeds etc.) rich in essential oils and aromatic principles, and which, because of their characteristic taste, are mainly used as condiments. These products may be imported whole or in crushed or powdered form”.

It is stated that Heading 09.04 to 09.10 of the CCCN correspond to the single Heading 09.04/10 of the CTA, 1975.

Under CCCN

The relevant excerpts of Heading 09.09 of CCN Explanatory Notes are -

“These fruits or seeds are used for consumption as spices for industrial purposes (e.g. in distilleries) and for medical purposes. The seeds of anise referred to here are the green anise, an egg shaped seed, striped lengthwise, greyishgreen with a very characteristic colour and aromatic flavour. Badian is Star Anise”.

The explanatory notes under Heading 1207 (appearing at page 68) which reads as under -

“It should also be noted that vegetable products more specifically described in other headings of the nomenclature are excluded from the present heading even if they are suitable for use in perfumery, pharmacy etc. e.g. Vanilla,  Cloves, Aniseed, Badian and other products of Chapter 9".

Basing on these notes and on the reference to the entry at pages 1288 and 1908 of the ‘Indian Materia Medica’ in respect of Illicium Verum and Pimpinella Anisum, the Revenue are contending that the item (which are seeds) described in two invoices as ‘Star Aniseed’ and amplified as ‘Illicium Verum/Badian-i- Kathai and in another invoice as ‘crude drug’ and amplified as ‘Badian broken mixed’, the items are star anise (the English name) and therefore, are squarely covered by Chapter 9 (Heading 0909 of CCCN Explanatory Notes). It is further stated that the item falls outside the scope of Heading 12.07 of Customs Tariff Act, 1975 by virtue of exclusion note referred to in Explanatory Notes under Heading 12.07 of CCCN and thus the Revenue pray for classification under residuary sub-heading (1) of 09.04/10 of Customs Tariff Act, 1975.

Appeal C-8 and 9/90-D

The importer is aggrieved in these appeals in respect of classification of goods described in the Bill of Entry C-391/11-10-1988 and C-123/ 4-10-1988 as ‘Star Aniseed’. It has been classified under Heading 0909.10 instead of Item 12.11 as claimed by them. The appellants’ contention is that Heading 09.09 does not cover fruits but seeds only. It is contended that fruit cannot be equated to seeds. The item imported is fruit and not seeds and they are required to be classified under the Heading 12.11 of Customs Tariff Act, 1975.

Appeal No. C-1961/91-D

This appeal arises from a demand of short levy under Section 28(1) of the Customs Act, 1962. The Asstt. Collector confirmed the demand ex parte as the importer did not represent before him. On appeal the Collector (Appeals) has upheld the classification relying on the HSN Notes appearing at page 65 of Vol. I in respect of Heading 09.09.

4. In this appeal, the importer is contending that what has been imported is Badian Khatai fruit for Unani medicines and not seeds. They contend that Badian Khatai and Anise is not the same as Star Anise as can be noticed from technical literature. It is stated Badian is only ‘Saunf but what is imported is Badian Khatai. They also rely on Appendix 6 List 4 Item 35.

5. We have heard Shri Madhav Rao for the importers and Shri J.N. Nair, learned DR for the Revenue. Shri Madhav Rao relied on the term ‘Anise’ appearing at pages 421 - 422 of the ‘New Encyclopaedia Britannica’. He also referred to term Illicium appearing at pages 166-167 of The Wealth of India, Vol. V Published by CSIR 1959 which states as follows. Illicium Linn.

“A small genus of evergreen aromatic shrubs or small trees distributed in Atlantic North America and Asia. Two species occur in India.”

I. Griffithii Hook f & Thoms is a large shrub, 3-4½ m high, found in Bhutan and Khasi hills at altitudes of 1400-1700 m. Leaves ovate, elliptic-lanceolate; flowers solitary, axillary or terminal; fruits consisting of compressed, beaked, incurved carpels (follicles) arranged in a single whorl; seeds small, sub- rotund, slightly compressed, glossy, brown.

The fruit is slightly aromatic, with a bitter and astringent taste and is reported to be poisonous. It is stimulant and carminative. It yields, on steam - distillation, an assential oil resembling that from aniseed (Pimpinella anisum linn) and fennel (Foeniculum vulgare Mill) (Dymock Warden & Hooper, I  40-41, Kirt & Basu, 1, 60; Krishna & Badhwar, J. Sci. Industr Res. 1947 6(002) Suppl 10; Chopra & Badhwar, Indian J agric Sci 1940 10 17)

1. Verum Hook f constitutes the source of Star Anise oil used as a flavouring agent and in medicine. It does not occur in India, but its fruits (Star anise of China; Hindi Anasphal, sonf; Tel. Anaspuvu, Tam - Anashuppu anasi-pu; Bombay-Badian) are imported from China and Indo-China; data relating to imports are not available.

I Verum is an evergreen tree attaining a height of 8-15 m and a diameter of 25 cm. Leaves entire 10-15 cm long and 2.5-5 cm broad, elliptic to oblanceelate flowers solitary white to red in colour; fruit star shaped, consisting of 8 carpels (Follicles) arranged in a whorl around a short central column; each follicle 12-17 mm long, boat-shaped, hard and wrinkled containing a seed; seeds brown, compressed ovoid, smooth, shiny, brittle. The plant is indigenous to tropical and sub-tropical East Asia. It is extensively cultivated in a limited area with particular ecological factors, in Kwangsi in southeast China and Tonkin in Indo-China.

Star Anise tree is propagated by seeds, sown in beds in October-November. The seedlings are transplanted at the fourth leaf stage, first in a nursery and again after 3 years in the plantation. The plant comes into bearing from the tenth year onwards. The fruits are generally collected before they are quite ripe, when the essential oil content is maximum. The average life of the tree is 80-100 years. The bulk of harvested fruits is steam-distilled in the fresh condition for the essential oil; the rest is dried for export (Bull econ Induct 1938 41 966; Schmidt & Marcus II 370 Guenther V 363-365)

Star anise fruit has an agreeable aromatic, sweet taste and a pleasant odour resembling anise. It is used as a condiment for flavouring curries, confectionery and spirits, and for pickling; it is also used in perfumery. The fruit is chewed to sweeten the breath and to help disgestion. It is stomachic and carminative and considered useful in flatulence spasmodic affection of the intestinal canal, and dysentery. It is used as an adjunct to cough mixtures and as a corrective of taste (Burkill II 1125; Krishna & Badhwar J Sci Industr Res “ 1947 6(002) Suppl. to Parry JW 130 Hill 453 Dymock Warden & Hooper I 40)

Star anise fruit is often adulterated with the fruit of I anisatum Linn syn I religiosum Sieb & Zucc; grown in Japan and variously known as Japanese sacred anise tree, poison bay, shikimi of shikimi-noki; False aniseed and bastar-star anise. The fruit of I anisatum is poisonous (Wehmer I 338; Krishna & Badhwar loc cit; Youngken 307; Guenther V 378-79 Wallis 249 USD 1955 1721).

Star anise oil of commerce is obtained by the steam distillation of fresh fruits of I verum (yield 3-3.5%). It is colourless or pale yellow with the characteristic odour and aromatic taste of true anise oil (from pimpinella anisum ); the odour and taste of the latter are rather more delicate. The oil has the following characteristics sp gr 25°, 0.978-0.87; n20 D, 1.5530 1.5582; (a) 0-1.77° to + 0.57° congeal, pt 15.0 18.4°; sol in 1.0 - 2.5 vol. of 90% alcohol; anethole is the chief constituent (85 -90%). Star anise oil is official in the pharmacopoeias of many countries; it constitutes the bulk of the oil of Anise of commerce (Guenther V 367-76; Int P 1158 USD 1955-92).

Star anise oil is used as a flavouring agent in confectionery, candy, chewing gum, tobacco, animal feeds, liqueurs and pharmaceutical preparations. It is used also in perfumery and soaps. The oil is stimulant, stomachic, carminative, mildly expectorant and diuretic. It relieves colic and is an ingredient of cough lozenges. The oil is employed as an application in rheumatism and otalgia and as an antiseptic. It is considered useful against body lice and bed bugs, and forms an ingredient of cattle sprays. It is used in favus (honeycomb ringworm) and scabies. The oil enters into the composition of a number of official preparations (Guenther V. 376; Kirk & Othmer IX 576; Schmidt & Marcus II 371; Chem Abstr; 194741, 3576; Wren 332; BPC 1949 567; Nadkarni 1676 USD 1955-92; Steinmetz I 46).

Decorticated seeds contain a fatty oil (55%) having the following constants; sp gr 25° 0.9128; n²⁵_D1.4677; sap. val. 194-5; iod. val, 88.36; acid val, 11.65; acetyl val, 8.37; RM val. 0.75; Polenske val 0.29; and unsapon matter, 0.59%. The componant fatty acids of the oil are; myristic 4.43; stearic 7.93; oleic 63.24; and linoleic 24-4% (Airan & Shah J Indian chem soc, 1942 19,175).

Star anise plant is used for flavouring foods and confectionery and is considered useful for colic, constipation and insomnia. The Chinese are reported to prepare a medicinal tea from the leaves (Burkill II 1226)."

From the book “The Indian Materia Medica’ he referred to Item 1288 ‘Illicium Verum, Hook (NO Magnoliaceae) at pages 675 and 676 -

“Eng-Star Anise Hind Anasphal Bom-Badian Tel-Anasapurvem Tom-Anasuppan Arab-Raziyanjekhatai Pers Badian-i-Khatai.

Habitant. Indigenous to Cochin China (Southern China and Tongking) from where the fruit is imported. Star Anise of the particular species which yields the oil of commerce is not available in India N.B.:- A variety known as Illicium griffithii is found but this is useless from the point of view of oil production.

Constituents - Fruit contains a volatile essential oil (obtained by boiling it with water) 4 to 5 p.c. sugar a bitter principle and tannia in various proportions.

Action - Aromatic carminative, stomachic, stimulant, diaretic and expectorant.

Uses - It is best given in the form of infusion. It is specially suitable for children in doses of ½  to 1 drachm as carminative. With tea it is given in flatulence and spasmodic affections of the bowels. It is also used as an adjunct to cough mixture and as a spice with food. Oil is applied to the abdomen of children to relieve colicy pains, to the joints in rheumatism and around the ear in otalgia or pain in the ear. Dose of the oil for internal administration is ½ to 3 drops. Following decoction is recommended for hemiplegia and facial paralysis in Ilaj-ul-Gurba - Take of badian 6 mashas (70 grains) Baikh Badian (root) 1 tola, seeds of Soya and Ajwan-ajmodhs 3 mashas. Nordostachys jatamansi 4 mashas, ..... root 1 tola, Gulkhand 2 tolas. Make a decoction in 6 chataks of water."

The Item 1908 Pimpinella Anisum Linn appearing at page 955 of the same authority, which is reproduced below -

“Sans-Shatapushpa - Madhurimisi - Karavee - Shatava; Shatpushpa Eng - Anise; Sweet fennel; Aniseed Fr-Anis; Ger-Anis-Biberrell Hin-Saonf; Saurif; Sonf; CP Tin Arab Anisun Ben-Muhuri Mithi-jira Bom-Eravados. Sonf Tel-kuppi; Sompu; Tam-Shombu Can-Sapu Pers Badian.

Habitant - This annual is a native of Egypt, but is cultivated in Persia, UP, Punjab, Orissa and various other parts of the world.

Constituents - Fruit yields an essential oil (distilled in Russia in large quantities) which is knowns as the oil of anise-seed (oleum anisi) and consists of anethole or anise camphor 80 p.c. anise aldehyde and methyl-chavicol. “The anise herbs cultivated in India yield the same constituents on distillation as the other varieties and are in no way inferior. Illcium verum (the star anise) which grows more plentifully than the true anise (Pimpinella anisum) and the essential oil obtained from the former being available at a much cheaper price, is more popular in use. The two oils are practically identical except that the true anise oil has a more delicate odour and flavour than the star aniseed oil. The content of anethole which is supposed to be the chief constituent is practically the same. Both these oils have been made.”

Shri Rao relying on these technical authorities, contended that the item imported is a fruit and not a seed. He submitted that HSN Explanatory Notes referred to seeds and not fruits and therefore, the item required to be classified under Heading 1211.90.

6. Shri Nair submitted that the item is both fruit and seed and that star anise imported is classifiable only under 0909.10 which had specific description of ‘seeds of anise and badian’. He contended that HSN Explanatory Notes had clarified that fruits and seeds would also come in the same category. He contended that spices are vegetable products and were not restricted to seeds alone. He submitted that when the heading referred to Star anise and Badian, then the reference is for both fruit and seeds. Shri Nair pointed out to note 3 of Chapter 12 which stated that Heading 1209 with description seeds. Fruit and spores of a kind used for sowing, and contended that the entry does not cover spices or other products of Chapter 9. He contended that the explanatory notes of HSN has persuasive value and it requires to be accepted for the purpose of classification and in this context, relied on the ruling rendered in the case of Collector of Customs v. Hindustan Pulverising Mills (P) Ltd. [1991(07)LCX0057 Eq 1992 (057) ELT 0428 (Tri.)] wherein it has been held at para 4 -

“It is well settled that even though the Explanatory Notes have no statutory forces, they do provide a valuable guidance for chemical and trade understanding of the entries mentioned in the Customs Tariff Act, if the particular Customs Tariff is aligned to the CCCN”.

Shri Rao in reply submitted that HSN Explanatory Notes referred to seeds and not to the fruits. Although the words in the Explanatory Notes referred to ‘these fruits’ yet it should not be considered to be pointing to fruits of star anise; as the said reference was only to the seeds of star anise and not fruits of star anise. He submitted that the HSN Explanatory Notes does not have binding effect but only persuasive value and whenever there is divergence between the two, it would be reasonable to infer that the divergence has been extended and to that extent, the Brussels Nomenclature will have no application.

In this context, he relied on the ruling of the Bombay High Court in the case of Randip Shipping and Transport Co. P. Ltd. v. Collector of Customs as reported in 1989 (041) ELT 392.

7. We have carefully considered the submissions and perused the records. The imported item has been described as Star Aniseed in first five appeals and in last appeal No. C-1961/91-D, as Badian Khatai Fruit, said to belong to the family of Magnoliaceae. The Botanical details of both the items plant family Umbelliferae and Magnoliaceae with their Botanical names and details have already been extracted. As can be seen from the description of anise, appearing at pages 421, 422 of “The New Encyclopaedia Britannica”, anise, pimpinella anisum of the Umbelliferae family is cultivated for its fruits, called aniseed. It also states that the fruit or seed is merely ovoid in shape, about 0.12 inch (3.5 millimeters) long and has five longitudinal dorsal ridges. It further states that aniseed is widely used to flavour pastries and in Asia is commonly used in meat and vegetable dishes. It makes a soothing hartal tea and has been used medicinally from pre-historic times. It further states at page 422 that ‘Star anise’ is dried fruit of the Illicium Verum, an evergreen tree of Magnoliaceae family, indigenous to the South Eastern part of China and Vietnam. Its flavour and uses are similar to those of anise. The fruit takes its name from the Star like arrangement of its carpels around a Central axis. The dried fruit is about 0.1 to 0.2 in diameter, individual carpels are usually about 0.4 in length containing a single seed. Dried carpels are hard, rough and reddish brown; the seeds are smooth, lustrous and light brown in colours. Essential oil content is about 3 per cent and its principal component is anethole".

8. The details of these plants of two families from Indian Materia Medica is also extracted. What follows from the reading of this literature is that the fruit and the seed are basically the same. In the case of the plant Illicium Verum of Magnoliaceae, the fruit takes its name from the starlike arrangement of its carpel, and individual carpel contains a single seed. As can be seen the star anise refers to the star like arrangements of its carpels, which contains one seed. The Medica Materia refers to Star Anise to Badian-i-Khatai in respect of Illicium Verum and Anise sweet furnael. Aniseed to pimpenella anisum. Shri Madhav Rao, learned advocate, had brought the sample of packets of the item. On examination of sample packet placed before us, we find that both Star anise and its seeds were present in the packet; although Shri Rao contended that the import was not specific for star anise only. The star anise and seeds both have multifarious uses both medicinal as well as for spices used in confectionery. The fruit referred to in the plant Illicium Verum is only a carpel, which are star like containing a seed. Although both are having separate uses but there is no specific import of star anise alone without its seed. The new Encyclopaedia Britannica refers to it as ‘fruit or seed’. Hence, the term anise refers to both and the item in question are primarily seeds; as fruit refers to dried star like carpels in the case of Illicium verum. It is of common knowledge that where a dried fruit is used for purpose of seedlings, it is also referred as a seed and not fruit. Fruits are fleshy, pulpy and capable of immediate use. The reference to Illicium at page 167 of “The Wealth of India Vol. V also refers to the bulk of harvested fruit is steam distilled in fresh condition for the essential oil, the rest is dried for export. It also refers to Star anise fruit having agreeable aromatic, sweet taste and a pleasant odour resembling anise and being used as a condiment for flavouring curries, confectionery, spirits for pickling and in perfumery. The fruit is chewed to sweeten the breath and to help digestion. When both the literature are read together, the reference of uses of fruit and seed of Star anise is almost same and it refers to one and the same. Therefore, the literature refers to fruit dried Star like carpels with seed; hence the item has to be considered as seed alone as both the seed and fruit are refering to one and the item uses. This view is confirmed by reading of HSN Explanatory Notes under 09.09 at page 65. 09.09 which refers to ”seeds of Anise, Badian, fennel, coriander, cumin caraway or juniper". 0909.10 refers to seeds of anise or badian. The notes state that “These fruits or seeds are used for consumption as spices for industrial purposes (e.g. in distilleries) and for medicinal purposes.

The seeds of anise referred to here are the green anise, an egg shaped seed, striped lengthwise, greyish-green with a very characteristic odour and aromatic flavour. Badian is star anise".

These Explanatory notes are not in conflict with the literature either. Therefore, the conclusion is that Star Anise are seeds and also refers to fruits.

9. Now we have to see in which entry, the imported items would fit in. The contesting entries in this case are Headings 09.04/10(1) of the erstwhile tariff of Customs Tariff Act, 1975 as against Heading 12.07(2) of the erstwhile Tariff and Heading 09.09.10 of the Customs Tariff Act, 1975 as on 1-6-1989 and Heading 1211.90 of the Customs Tariff Act, 1975 as on 1-6-1986. The contesting entries of the old and new tariff are incorporated below -

“Chapter 9 - COFFEE, TEA, MATE AND SPICES

1. Heading No. 0904/10 shall be taken to include spices mixed with other substances provided that the resulting mixtures retain the essential character of spices. Otherwise such mixtures are not classified in this chapter; those constituting mixed condiments or mixed seasonings are classified in Chapter 21"

Chapter 12

“Oil seeds .and Oleaginous Fruits; Miscellaneous Grains; Seeds and Fruit; Industrial and Medical Plants; Straw and Fodder

Note. 3 Heading No. 1207 is to be taken to apply inter alia to the following plants or parts thereof; hasil, borage, hyssop, all species of mint, rosemary, rue, sage and wormwood.

Heading No. 12.07 is however, to be taken not to apply to

(a) oil seeds and oleaginous fruit (Heading No. 12.01);

(b) medicaments and other products falling within Chapter 30;

(c) perfumery and other products falling within Chapter 33; or

(d) disinfectants, insecticides, fungicides, herbicides or similar products falling within Chapter 38.

The heading of Chapter 9 of Customs Tariff Act, 1975 reads Coffee, Tea, Mate, Spices

Notes –

“1. Mixtures of the products of Headings Nos. 09.04 to 09.10 are to be classified as follows -

(a) Mixtures of two or more of the products of the same heading are to be classified in that heading;

(b) Mixtures of two or more of the products of different headings are to be classified in Heading No.09.10

The addition of other substances to the products of Heading Nos. 09.04 to 09.10 [for the mixtures referred to in paragraph (1) or (b) above] shall not affect their classification provided the resulting mixtures retain the essential character of the goods of those headings. Otherwise such mixtures are not classified in this chapter; those constituting mixed condiments or mixed seasonings are classified in Heading No. 21.03.

2. This chapter does not cover Cubeb pepper (Piper cubeba) or other products of Heading No. 12.11. The relevant entry reads as follows :

“Oil seeds and oleaginous fruits; Miscellaneous grains, seeds and fruit; industrial or medicinal plants; straw and fodder.”

The Chapter 12 of Customs Tariff Act, 1989[4] has the following heading –

“Oil seeds and Oleaginous fruits; Miscellaneous grains, seeds and fruit; Industrial or Medicinal plants; Straw and fodder.”

Note 4 reads -

“4. Heading No. 12.11 applies, inter alia to the following plants and parts thereof, basil, borage, ginseng, hyssop, liquorice, all species of mint, rosemary, rue, sage and wormwood.

Heading No. 12.11 does not, however, apply to -

(a) Medicaments of Chapter 30;

(b) Perfumery, cosmetic or toilet preparations of Chapter 33; or

(c) Insecticides, fungicides, herbicides, disinfectants or similar products of Heading No. 38.08"

The relevant entry reads -

10. The old Chapter 9 of the Old Tariff reads Coffee, Tea, Mate and Spices. The Note 1 reads Heading 09.04/10 shall be taken to include spices, mixed with other substances provided that the resulting mixtures retain the essential character of spices. Otherwise, such mixtures are not classified in this chapter; those constituting mixed condiments or mixed seasonings are classified in Chapter 21.

11. The Chapter 12 has got a heading reads “Oil Seeds and Oleaginous Fruit; Miscellaneous grains; Seeds and fruit; Industrial and Medical Plants; Straw and fodder.

12. In the new Tariff which is aligned to the CCN Explanatory Notes, Chapter 9 also refers to heading Coffee, Tea, Mates and Spices. The Chapter Notes 1 and 2 of this Chapter have been reproduced above.

13. The Chapter 12 reads Oil Seeds and Oleaginous fruits; Miscellaneous grains, seeds and fruits; Industrial or Medicinal plants; Straw and fodder. The Chapter Note 4 has been extracted above.

14. As can be seen from both the old and new Tariffs, there is not much of change between the Chapter headings and also to some extent, the Chapter Notes. The question that is to be considered is as to whether the item in question has to be brought within the Chapter 9 or 12. Chapter 9 refers to Spices in respect of both the Tariff Acts and in respect of the new Tariff Act, the heading 0909.10 refers to seeds of anise or badian. This heading is specific to include seeds of anise or badian which is having primary use of spices. Spices as can be seen from the literature produced, is also having use in the Pharmacy industry but it cannot be said that it is of a kind used primarily in pharmacy alone for the simple reason that the item in question is having multifarious uses. It is used from pre-historic times both as a spice and for home remedies as can be seen from the “The New Encyclopaedia Britannica Vol. I”. It is of common knowledge that the spice of anise which is known in local term as ‘sounf’ is taken after the meals as a digestive and also alongwith paan and paan masala. Therefore, to say that star anise is primarily of a kind used in pharmacy is not correct and cannot be accepted. Its use is not totally medicinal, as it is used as a spice and is commonly being used in meat and vegetable dishes and in confectionery and pastry also. Therefore, the item cannot be considered as a fruit in the first instance and more particularly of a kind used primarily in pharmaceutical item to be classified under Chapter Heading 12 of both the Tariff Acts. Therefore, on a careful examination of the materials produced and with the reading of the chapter headings alongwith the explanatory notes of HSN, it is very clear that the product is seeds having uses as spice and is the seeds of anise or badian having a specific entry in Chapter Heading 0909.10 of the new Tariff and under sub-heading 09.04/10(1) under heading spices and therefore, the classification made under these chapters is correct and not assailable. The importer has taken a ground that this product is also cleared under OGL under App. 6, List 4, Item 35 AM 85-88 and therefore, it requires to be classified under Chapter Heading 12. We are not impressed with this argument as we are not concerned with the classification under the Import Tariff. In the result, the appeals filed by the Revenue bearing Nos. 1311 to 1313/87 are allowed and the importer’s appeals bearing Nos. 1961/91, C/8 and 9/92-D are dismissed.

Equivalent 1993 (65) ELT 128 (Tribunal)