1999(10)LCX0026

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri J.H. Joglekar, Member (T) and J.N. Srinivasa Murthy, Member (J)

CHOKHANI PHARMA VET

Versus

COMMISSIONER OF CUSTOMS, MUMBAI

Order No. 2808/1999-WZB/C-II, dated 25-10-1999 in Appeal No. C/762-R/99-Mum.

CASE CITED

Tetragon Chemie Pvt. Ltd. v. Collector — 1998(09)LCX0051 Eq 2001 (138) ELT 0414 (Tribunal - LB) — Relied on [Paras 2, 3, 4,]

Advocated By :   Shri J.C. Patel, Advocate, for the Appellant.

Shri K.L. Ramteke, JDR, for the Respondent.

[Order per : J.H. Joglekar, Member (T)]. - On hearing the stay application it appeared that the issue being very well settled, the main appeal itself could be taken up for disposal. This was done after granting waiver of the condition of pre-deposit of Rs. 2,52,930/-.

2. The appellants imported “Rovimix AD3 500/100 (Feed Grade) (Poultry Feed Supplement) and claimed classification under Heading 2309.90 CTA and 2302.00 CETA. The Customs contested the classification. After issue of show cause notice and hearing the appellants the Additional Commissioner of Customs judged the classification under the CETA under sub-heading 2936.00 and demanded the differential duty referred to above. The Larger Bench judgment of the Tribunal (Misc. Order No. 248/98, dated 13-11-1998) [1998(09)LCX0051 Eq 2001 (138) ELT 0414 (Tribunal - LB)] in the case of Tetragon Chemie Pvt. Ltd. & Ors. was cited before the Commissioner in appeal proceedings. The Commissioner without taking cognizance of that judgment upheld the lower orders. Hence the present appeal.

3. Shri J.C. Patel shows the memorandum of appeal before the Commissioner (Appeals) in which specific reliance was placed on the cited judgment of the Tribunal. He also shows us a copy of another order passed by the same Commissioner (No. 266/99 AP CL (NCH), dated 16-3-1999) in which similar products were held by him to be classifiable under Heading 23.09 of CETA, 1975 following the cited order of the Larger Bench. Shri Ramteke, on the other hand, supports the Commissioner’s order.

4. We have carefully considered the submissions and have seen the cited order of the Larger Bench. The order covers similar products where the active ingredients are vitamins and other ingredients like starch are present. There is no doubt that the contested goods are akin to those goods which were before the Tribunal in making the judgment. When a precedent of a superior forum was cited before him, it was mandatory for the Commissioner to have followed it. In not doing so he has passed an order which does not sustain. We set aside this order, allow the appeal and direct consequential relief, if any.

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Equivalent 2001 (134) ELT 0101 (Tri. - Mumbai)