M/S Dsm Nutritional Products (I) Pvt. ... vs Commissioner Of Customs (Imports), ...

(Arising out of Order-in-Appeal No. 2233 (Gr.IIA-F)/2014(JNCH)/IMP-2152 dated 19.5.2014 passed by the Commissioner of Customs (Appeals), Nhava Sheva, Mumbai-I).

For approval and signature:

Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================

M/s DSM Nutritional Products (I) Pvt. Ltd. Appellant

Vs.

Commissioner of Customs (Imports), Nhava Sheva Respondent

Appearance: Shri T. Viswanathan, Advocate for Appellant

Shri Chatru Singh, AC (AR) for Respondent

CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)

Date of Hearing: 04.03.2015

Date of Decision: 04.03.2015

ORDER NO.

Per: P.S. Pruthi

The appellant is in appeal against the impugned Order-in-Appeal passed by the Commissioner (Appeals), Nhava Sheva.

2. The issue in this case is classification of goods namely, vitamin premixes imported by the appellant. The appellant claimed classification under Customs Tariff Item 293669000 on which Basic Customs Duty (BCD) is 7.5%. The department, on the other hand, has held the classification to be 21069099 having BCD as 30%. The Commissioner (Appeals) upheld the order of the adjudicating authority holding the classification of the imported goods under heading 21069099.

3. Heard both sides.

4. The learned Counsel for the appellant makes the following submissions: -

(i) Custom House did not draw any sample of the goods to arrive at the correct classification.

(ii) Vide their letters to the department, the appellant had stated that the ingredients of the goods imported by them are vitamins only. The goods are imported under the nomenclature vitamin premixes. A certificate of analysis submitted along with each Bill of Entry was also submitted to the Customs authorities indicating that the vitamin pre-mixes contain vitamins only.

(iii) The Order-in-Original has wrongly presumed that the manufacturers Certificate of Analysis confirms that the imported goods are a blend of vitamin and minerals. The Commissioner (Appeals) goes on to add that the impugned goods are also used for making food supplement for human consumption and contain carbohydrates, vitamins, minerals and other additives. The learned Counsel states that it is not understood from where this information was obtained by Commissioner (Appeals) because the Order-in-Original only states that the impugned goods contain minerals and vitamins.

(iv) The Order-in-Original relied on the Ruling of the US Customs website for holding the correct classification to be 21069099 but a copy of this Ruling was not provided to the appellant.

(v) The Order-in-Original relies on NIDB data. In this regard, the learned Counsel states that no documentary evidence (NIDB data) has been provided to them. On the contrary, they have evidence that goods imported through other Ports were classified under CTH 29369000.

5. We have carefully considered the submissions made by both sides. The only issue to be decided in this case is whether the impugned goods contain any ingredients other than vitamins. The easiest way to resolve the issue would have been an analysis of the impugned goods by Dy. Chief Chemist, which was not done. The Order-in-Original relied on ruling of US Customs website and NIDB data, evidence of which was not provided to the appellant. Therefore, principles of natural justice have been violated. In any case, this being only a matter of classification, it did not warrant confiscation or penalty when the basic requirement of testing of the goods has not been complied with. Therefore, it is a fit case for remand to the adjudicating authority.

6. We order that: -

(i) The matter is remanded to the adjudicating authority with direction to get the goods tested by the Chemical Laboratory. Being a live consignment, the test should be conducted within a period of one month of the receipt of this Order. After testing, a copy of the test report should be given to the appellant to enable them to argue their case before the adjudicating authority.

(ii) We set aside the confiscation and penalty imposed on the appellant.

(Dictated and pronounced in Court)

(Anil Choudhary) (P.S. Pruthi) Member (Judicial) Member (Technical)

Sinha

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