2016(08)LCX0115

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. II]

S/Shri Ramesh Nair, Member (J) and Raju, Member (T)

SHUBHAM PHARMACHEM P. LTD.

Versus

Commr. Of Cus. (Import), Nhava Sheva

Final Order Nos. A/89369-89370/2016-WZB/CB, dated 24-8-2016 in Appeal Nos. C/847 & 1460/2005-Mum

Advocated By -

Shri AX. Prabhakar, Advocate, for the Appellant.
Shri V.R. Reddy, Asst. Comm. (AR), for the Respondent.

[Order per : Raju, Member (T)]. -

The appellant, M/s. Shubham Phar-machem Pvt. Ltd. imported "Fenbendazole" and sought to classify the same under Heading 2933 29 90. Revenue issued a show cause notice alleging that the said item is classifiable under Heading 2933 99 00 and therefore, the imports were restricted and licence was required as per foreign trade policy. The matter was adjudicated and the goods were held to be classified under Heading 2933 99 00 and hence restricted. The same were confiscated and offered on payment of redemption fine and penalty was also imposed.

2. The learned Counsel for the appellants argued that the goods are correctly classifiable under Heading 2933 29 50. The said heading reads as under :

2.1 He argued that the entire case of the Revenue is based on Harmo nised Commodity Data Base of World Customs Organization (WCO), where it is specifically classified under Heading 2933.99. He pointed out that these documents have not been appreciated. He also pointed out that it is not clear as to what period the said data base pertains to and what were the entries in the tariff at the material time. He argued that all compounds containing imidazole ring are classifiable under the Headings 2933 21 to 2933 29. He highlighted that Tinidazole, Mebendazole, Dimetridazole and Albendazole are all classifiable under Heading 2933 29 of the tariff. He produced the molecule structure of three items :
It can be see that all three molecules contained imidazole ring which is basic qualification for classification under Headings 2933 21 to 2933 29. The compounds Fenbendazole and Mebendazole are both classifiable under sub-headings 2933 29 50 and 2933 29 30 respectively. In view of the above, he argued that the goods are rightly classifiable under Heading 2933 29 90 and therefore, not restricted.

3. The learned AR relies on the impugned order. He however failed to produce the so called database of world customs organization of which the impugned order is based.

4. We have gone through the rival submissions. We find that the only ground on which the impugned order is based is the so called database of world customs organization. The Revenue has failed to produce the same and therefore, the same cannot be considered for the purpose of classification.
5. The learned Counsel has clearly demonstrated from the structure of the compounds that Fenbendazole contains imidazole ring. Any chemical containing imidazole is classifiable under Heading 2933 21 00 to 2933 29 90. In view of the above, the classification sought by the appellant is upheld. The appeal is accordingly allowed.
(Pronounced in Court on 24-8-2016)

Equivalent 2016 (342) ELT 0251 (Tri. - Mumbai)