2007(02)LCX0254
In the Customs, Excise & Service Tax Appellate Tribunal, Mumbai
Smt. Archana Wadhwa, Member (Judicial) and Shri M. Veeraiyan, Member (Technical)
Commissioner of Customs, Nhava Sheva
Versus
M.B. Sales Corporation
Final Order Nos. A/185-187/WZB/2007/C-II/CSTB dt. 2.2.2007 certified on 16.3.2007 in Appeal Nos. C/895, 1316 & 1317/2006
Cases Quoted -
CESTAT's Order No. A/136/WZB/C-IV dated 1.12.2005 in the case of Hardware Trading Corporation Vs. CC, Nhava Sheva -Relied on [Paras 6,7]
Advocated By -
Shri U.H. Jadhav, DR for Department
Ms. Kiran Doiphode, Adv. for Party
Per M. Veeraiyan :
These appeals are on a common issue and therefore, are being disposed of by a common order. The Appeal Nos. 1316/06,1317/06 are by the department and the other Appeal No. 895/06 by the importer.
2. Heard both sides.
3. The relevant facts, in brief, are as follows:
(a) The importers have imported a chemical by name, Sodium Cyanide and sought classification of the same under Chapter Customs Tariff Heading 28.37.1100 and the Commissioner, however, classified them under Customs Tariff Heading 3808.1099;
(b) According to the Commissioner, the items Sodium Cyanide are goods covered under Insecticides Act, 1968 having been specifically listed under the schedule to the Act and hence the import of such insecticides even for use as non-insecticides can be allowed only on the basis of import permit issued by Registration Committee constituted under the Insecticides Act, 1968.
(c) As these imports have been made without the cover of such permit, the Commissioner has confiscated the goods under Section 111 (d) of the Customs Act but allowed the goods to be redeemed on payment of redemption fine. He also imposed penalty on the importer under Section 112 (a) of the Customs Act, 1962.
(d) In the cases where the Department has come on appeal the Commissioner (Appeals) has held that items imported are covered by exemption under Section 38 of the Insecticides Act
4. Learned Advocate for the respondents submits that Cyanide imported by them is in such form, size and concentration which cannot be used as insecticides; they are also covered by the exemption granted under the Insecticides Act. In addition, the product imported by them, sodium cyanide is specifically covered under Chapter Heading 2837.1100.
5. Learned DR reiterated the findings of the Commissioner.
6. We have carefully considered the rival submission. It is not established that the product which is imported by them is meant for use as insecticides. The form, concentration, the weight of each unit in which the commodity is imported does not lend credence to the finding that the product can be considered as insecticides. Further, as submitted, by the learned Advocate for the respondents, in similar circumstances, the Tribunal has held that boric acid though mentioned as insecticides under the Insecticides Act, importation of the same does not require permit from Registration Committee in their Order No. A/136/WZB/C-IV dated 1.12.2005 in the case relating to M/s. Hardware Trading Corporation Vs. CC, Nhava Sheva.
7. In the light of the above, following the ratio of the above order of the Tribunal, we hold that the imported goods cannot be treated as insecticides and therefore, its classification should be treated as 2837.1100 and there is no violation for having imported the same without the permit of the Registration Committee.
8. The appeal by the party is, therefore, allowed. The Department's appeals are rejected.
Operative part of the order was pronounced in the open Court at the end of hearing on 2.2.2007.
Equivalent 2007 (080) RLT 0802 (CESTAT-Mum.)
Equivalent 2007 (213) ELT 0050 (Tri.- Mumbai)