SUPREME COURT OF INDIA
Commissioner of Central Excise, Mumbai
CIVIL APPEAL NOS. 5858-5859 OF 2007
OCTOBER 16, 2015
K. Radhakrishnan, Sr. Adv., Tara Chandra Sharma, Ms Binu Tamta, Rajiv Singh and B. Krishna Prasad, Advs. for the Appellant. Mrs. Shiraz Contractor Patodia, Adv. for the Respondent.
1. The question that falls for consideration is as to whether the Virginiamycin imported under brand name STAFAC 1000 is classifiable under Customs Tariff Heading 2941.90 and Central Excise Tariff Heading 2941.90 or under Customs Tariff Heading 2309.90 and Central Excise Tariff Heading 2302.00. The Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as ‘CESTAT) by impugned decision dated 05.09.2006 has followed its judgment rendered by the Chennai Bench in the case of Tetragon Chemie (P.) Ltd. v. CCE 1999 (30) RLT 366. We may mention that the aforesaid judgment was upheld by this Court dismissing the appeal of the Revenue.
2. The contention of the appellant/Department in “challenging the aforesaid findings of the CESTAT is that the said judgment in Tetragon Chemie Pvt. Ltd. is not applicable in the instant case. On the other hand, it is pointed out by Mr. K. Radhakrishnan, learned senior counsel appearing for the Department, that the CESTAT has totally ignored the fact that they have placed the decision of this Court classifying these products under sub-heading 2941.90 of the Central Excise Tariff that it is not premix animal feed under sub-Heading 2302.00. It is pointed out that this view has been taken in the case of the same assessee in ‘Pfizer Ltd. v. Commissioner’ 2005 (186) ELT A117 (SC).
3. We find substance in the aforesaid submission of learned senior counsel. We may mention that insofar as the judgment inTetragon Chemie (P.) Ltd. (supra) is concerned, which was upheld by this Court, it pertains to two competent classifications, i.e., 29/36 as Vitamins or 23.09/23.02 as preparation of a kind used in animal feed. In that case, the product was a premix, the additional items in the product were calcium carbonate, benzene, dextrose, lactose, yeast, soya flour etc. On the other hand, in the present case, imported goods Virginiamycin is a well defined chemical of 100% purity with anti bacterial properties included specifically under Chapter 29 by virtue of Chapter Note 1(a). The judgment of Tetragon Chemie (P.) Ltd. (supra) has, therefore, no application to the facts of the present case.
4. As a result of the aforesaid discussion, the present appeal is allowed and the order of CESTAT is set aside.