2009(07)LCX0147

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI [COURT NO. II]

S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T)

Overseas Carrier

Versus

Commissioner of Customs, New Delhi

Final Order No. C/313/2009(BR)(PB), dated 15-7-2009 in Appeal No. C/552/2006-CUS.(BR)

Advocated By -

Shri Sheknar Vyas, Advocate, for the Appellant.
Shri Sunil Kumar, DR, for the Respondent.

[Order per: D.N. Panda, Member (J)]. -

Ld. Counsel Shri Shekhar Vyas argued that eight consignments imported are depicted in page-1 of the order-in-original. The goods were fertilizers containing Nitrate and Phosphate element and were branded as Rigenera NP 7.11. Samples of the some of these consignments were taken by Customs and sent for chemical testing. The test report does not indicate that these goods were meant for animal feed. He further submits that technical studies have been made to show that the goods imported can be used as fertilizer. The report relied upon by the Ld. Adjudicating Authority related to different consignments for which those are not permissible under law to be used against consignments of the appellant. In view of such circumstance, the Adjudication is bad and appellant is not liable to consequence of Adjudication.


2. Ld. DR Shri Sunil Kumar submits that samples drawn were brown powder which were subject matter of import and were subject to chemical test by Indian Veterinary Research Institute and Deen Dayal Upadhyay University. Both the reports suggest that absence of Nitrates while there was existence of Protein element in the sample tested. The Indian Veterinary Research Institute report suggested that the goods in question is composed of meat and bone meal which are of cattle origin and that is proved by scientific analysis. The report of Deen Dayal Upadhyay University also does not speak presence of Nitrates in the sample tested. The report of that university categorically mentions the brand of the goods i.e., Rigenera NP 7.11 and also the country of origin mentioned in the report.


3. Shri Sunil Kumar also draws our attention to first paragraph of order-in-original to submit that the imported products were banned for import. Also chemical analysis proved that the goods imported was composed of meat and bone meal ingredients. In absence of Nitrate, the proprietor of the appellant was arrested for importing the banned goods. Statement of the proprietor also proved that the goods imported were used for animal feed. In this context, ld. DR invites our attention to pages 2 and 3 of the order-in-original. He submits that there were sufficient evidence gathered by Revenue to prove that the poultry feed manufacturers were using the imported goods. Therefore basing on the chemical report, oral evidence and outcome of investigation, the Authority below has rightly classified the goods under the Heading 2309 90 90 instead of the goods being classified under Heading 3105 51 00. The evidence on record proved that the goods imported were not fertilizers and neither Nitrate or Phosphate were present in the goods as claimed by the appellant. Therefore department reasonably believed that there was deliberate misdeclaration for which the import called for confiscation. Accordingly, order of Adjudication does not call for disturbance.


4. Heard both sides and perused the record.


5. The crucial issue involved in this appeal is whether the goods imported by the appellant contained Nitrate and Phosphate. The chemical report of Indian Veterinary Research Institute and Deen Dayal Upadhyay University proved that Nitrate was absent in Rigenera NP 7.11 imported by the appellant. The goods imported was only subject matter of test report. The appellant has not brought out any material to suggest that the goods imported were used as fertilizer in this country. Nor there is any literature showed to us to prove that the goods were imported as fertilizer in large scale commercially, to serve purpose of agricultural. Also no material has showed to us to prove that import of such goods were as fertilizer and that is financially and economically viable for massive use in agricultural. When test reports of technical institutions are seen, it does not appeal to common sense to appreciate that animal feed is also possible to be used as fertilizer in this country. It is well known to every citizen of this country that to make price of the fertilizer affordable, Government of India gives subsidy for the welfare of farmers. Therefore use of the imported goods as fertilizer is inconceivable. This view is well supported by the laboratory test report. Accordingly Revenue's claim that the goods should be rightly classified under Chapter 2309 90 90 remains uncontroverted for which that remains untouched by the order.


6. All aforesaid evidence and reasons do not permit us to disturb the order passed by Ld. Commissioner for which appeal of the assessee is dismissed.

(Dictated and pronounced in open Court)

Equivalent 2009 (244) ELT 0081 (Tri. - Del.)