2010(01)LCX0035

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, EASTERN ZONAL BENCH, KOLKATA

S.S. Kang, Vice-President and S.K. Gaule, Member (Technical)

Atherton Engg. Co. Ltd.

Versus

Commissioner of Customs (Airport), Kolkata

Final Order No. A-42/KOL/2010, dated 19-1-2010 in Appeal No. CDM-32/2004

Cases Quoted -

Customs(P), Mumbai v. Artherton Engg. Pvt. Ltd. 2001(01)LCX0103 Eq 2001 (129) ELT 0502 (Tri-Mumbai) (Mentioned)

Commissioner of Income Tax v. Venkateswara Hatcheries (P) Ltd. (1999) 2 SCR 177 (Distinguished)

Rajbir Singh Dalai v. Chaudhuri Devi Lai University, Sirsa 2009 (1) SLJ 109 (SC) (Mentioned)

Advocated By -

R.K. Chowdhury and B.N. Pal, Adv. For the Appellant A.K. Sharma, Authorised Representative (JDR) For the Respondent

ORDER

S.S. Kang, Vice-President


1. Heard both sides.


2. Appellant filed this Appeal against the impugned Order whereby, the Brine Shrimp packs imported by the Appellant were held to be classifiable under Tariff Sub-heading 0511.99 of the Customs Tariff. The Commissioner (Appeals) in the impugned Order relied upon the earlier decision of the Tribunal in Appellants' own case reported as Commissioner of Customs(P), Mumbai v. Artherton Engg. Pvt. Ltd. 2001(01)LCX0103 Eq 2001 (129) ELT 0502 (Tri.-Mum.). The Appeal filed by the present Appellant against the decision of the Tribunal was dismissed by Hon'ble Supreme Court reported as Commissioner of Customs (P), Mumbai v. Artherton Engg. (P) Ltd. 2002(04)LCX0246 Eq 2002 (144) ELT A293.


3. The contention of the Appellant is that now there is certain changes in the Chapter 5 of Customs Tariff whereby, Artemia was specifically classifiable under Sub-heading 051199.11. The contention is that this aspect was not there when the earlier case was decided by the Tribunal. The Appellant also relied upon the explanation at SL. No. 56 to the general exemption Notification No. 21/02-CUS dated, 1st March, 2002 as amended where the explanation is for the removal of doubt for Prawn Feed shall mean Shrimp which are capable of if used as such without any addition or alteration thereto. The contention is that as per the understanding of the Revenue in view of the above explanation the goods are classifiable under Subheading 2309.90. The Appellant also relied upon the decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax v. Venkateswara Hatcheries (P) Ltd. (1999) 237 1TR 174 and in the case of Rajbir Singh Dalai v. Chaudhuri Devi Lai University. Sirsa 2008 (8) JT 621 SC to submit that a little difference in facts or additional facts may make a lot of difference in the precedential value of the decision.


4. The contention is that in view of earlier decision of the Tribunal is not applicable in the facts of the present case and the goods in question are to be classifiable under Chapter 23 of Customs Tariff.


5. The Revenue's contention is that the Tribunal in the Appellants' own case decided the issue of classification in favour of the Revenue and Appeal of the Appellant is dismissed by the Hon'ble Supreme Court. Therefore, the impugned Order is rightly passed.


6. We find that the classification issue in respect of the goods imported by the Appellant is already settled in favour of the Revenue and the Appeal filed by the Appellant before the Hon'ble Supreme Court is dismissed with the following observations:

We have heard the learned Counsel for the Appellant. We find no merit in the Appeal. The Civil Appeal is dismissed with costs.


7. Reliance of the Appellant on the decision of the Hon'ble Supreme Court in the case of Venkateswara Hatcheries (supra) by the Hon'ble Supreme Court will not help the case as the issue before the Hon'ble Supreme Court was in respect of interpretation of the Income Tax Provisions regarding deduction for new industrial undertaking. Therefore, the ratio of the above decision is not applicable to the facts of the present case.


8. In respect of explanation to notification at SL. No. 5 we find that as explanation the Prawn Feed means Shrimp which are capable of used as such. Whereas, the goods in question need lot of processing before get converted into larvae which is used as Prawn Feed. This finding is the Order passed by the Tribunal against which appeal is dismissed by the Hon'ble Supreme Court. Further, this factual position is not in dispute in the present case. Hence, we find no merit in arguments of Appellant in this regard.


9. There is no dispute regarding the proposition raised by the Appellant that a little difference in the facts or additional facts may make a lot of difference in the precedential value of the decision.


10. We find that in the present case the Chapter Heading of the Customs Tariff is the same as before the Tribunal in the earlier case where the goods were held to be classifiable under Sub-heading 0511.99 of the Customs Tariff. We find no reason to take a different view. The Appeal is dismissed.

Equivalent 2010 (175) ECR 0038 (Tri.-Kolkata)

Equivalent 2010 (254) ELT 0505 (Tri. - Kolkata)