2007(02)LCX0017

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI, COURT NO. I

Jyoti Balasundaram, Vice President and K.K. Agarwal, Member (Technical)

Commissioner of Customs (Import), Mumbai

Versus

Pioneer Agritechnoscan & Exports Pvt. Ltd.

Order No. A/ 128/WZB/2007/C & B/CI decided on 08.02.2007 in Appeal No. C/99/101

Advocated By -

U.H. Jadhav, JDR for the Appellant
None for the Respondent

Order

Jyoti Balasundaram, Vice President


1. The Revenue assails the Order of the Commissioner of Customs (Appeals), by which he has accepted the claim of the importers for classification of Calcium Nitrate Fertilizer as Chemical fertilizers under Customs Tariff Heading 3105.90, set aside the Dy. Commissioner's Order of classification under Heading 2834.29.


2. We have heard the learned Departmental Representative and perused the records, none appears for the Respondents in spite of notice.


3. By Note 1(b) to Chapter 31, separate chemically defined compounds other than those answering to the descriptions in Note 2(A), 3(A), 4(A) or 5 of the Notes to the same Chapter are excluded from the coverage of Chapter 31. It is not disputed that the imported goods are separate chemically defined compounds. It is also not in dispute that the goods do not answer the description in Notes 2A, 3A or 4(A)(sic). The contention of the Revenue is that although certain separate chemically defined compound as specified in Note 3A will fall for classification under that Chapter, the goods in question not answering the description of those specified separate chemically defined compounds will not fall for coverage under Chapter 31. We see merit in this submission. The reliance placed by the Commissioner (Appeals) on Chapter Note 6 which provides - for the purpose of Heading 31.05 the term "other fertilizers" applies only to products of a kind used as fertilizers and containing, as an essential constituent, at least one of the fertilizing elements nitrogen, phosphorus or potassium (imported goods contained nitrogen) is not correct for the reason that he has not considered Note 1 (b) to Chapter 31.


4. In the light of the above, we hold that the product in dispute cannot be classified as a fertilizer under Chapter 31 but under the Department's classification can in viz. under CTH 2834.29 which covers different types of nitrates. In the result the Impugned Order is set aside and the appeal allowed.

Equivalent 2007 (116) ECC 0195

Equivalent 2007 (142) ECR 0195 (Tri.-Mumbai)

Equivalent 2007 (210) ELT 0680 (Tri.- Mumbai)