Hon'ble Anil Kumar,J.
[Judgment by Hon'ble Mr. Justice Devi Prasad Singh]
1.Present first appeal from order, under Section 130 of Customs Act, 1962 (in short the Act), has been preferred against the impugned order dated 5.4.2005, passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in Appeal No.C/1185/04 (Sonam International Vs. Commissioner of Customs Lucknow).
2.We have heard Sri Rajesh Singh Chauhan learned counsel for the appellant and Sri Naveen Mullick on behalf of respondent as well as perused record.
Facts of the case:-
3.Directorate of Revenue Intelligence, (in short DRI) Lucknow, received information that respondent M/s. Sonam International, Shop No.9,B-Wing, Devki Nagar, Eksar Road, Borivali (West), Mumbai-400103, is involved in illicit import of third Country Origin Vitamin E powder by misdeclaring as poultry feed supplement in the Bill of Entry from Nepal into India. The Supplier at Nepal M/s. Anivet Industries, Birganj, Nepal, through the Land Customs Station, Sonauli on the Indo-Nepal Border in the State of Uttar Pradesh is exporting Vitamin E powder as poultry feed supplement importing it from foreign countries in Nepal. Respondent M/s. Sonam International by misdeclaring the Vitamin E powder as "Poultry Feed Supplement" AV-117 of Nepali Origin, vide Bill of Entry No.487/02, dated 1.12.2002 and cleared on 21.5.2003, through the Land Customs Station of Sonauli, on the Indo-Nepal Border in Uttar Pradesh, loaded on a truck bearing Registration No.;RJ-02/G-3837, were detained by the Officers of the Directorate of Revenue Intelligence (DRI), Lucknow on 26.5.2003 in pursuance of powers conferred by Section 110 of the Act.
4.During the course of investigation, DRI found that poultry feed supplement were imported by misdeclaration in violation of conditions stipulated in the Custom Notification No.40/2002-Cus dated 12.4.2002 and in contravention of provisions of Customs Notification No.9/96-Cus (NT) dated 22.1.1996, issued under Section 11 of the Act and the provisions of Revised Protocol to the Indo-Nepal Treaty of Trade.
5.In follow up action DRI, Surat found inter alia that the premises/address 4/112, Master Road, Valsad (Gujarat)-396001, does not belong to respondent M/s. Sonam International and they have never stored any goods belonging to them in the premises disclosed on papers. The premises belonged to one Shri Yashwant K. Shah. Shri Sanjay P. Shah, nephew of Shri Yashwant K. Shah and the Proprietor of M/s. Sanjay Agencies, Valsad, stated that he was engaged in the manufacture of "Poultry Feed Supplement" and he was having business relations with the respondent M/s. Sonam International, which used to supply Vitamins of different varieties to his firm who used to impose and trade the same and that they utilized these vitamins for making broiler premix, layer premix, SK bed, SK Mix, ABDK, etc. It was further stated that the premises located at Master Road, Valsad, is owned by his uncle Shri Yashwant K. Shah and the premises was being used at his behest as Office/godown by respondent M/s. Sonam International but in fact the Office of the respondent M/s. Sonam International was never made functional from this premises nor any goods belonging to M/s. Sonam International, were ever kept there, since these premises were being used as godown by his uncle's Firm since last 20 years. It was further stated that respondent M/s. Sonam International had wrongly shown the premises being used by it showing its Office address on paper only. It was further stated that goods of the respondent M/s. Sonam International given in the name of AV-10 and AV-110 etc., were actually Vitamins only since they used to purchase only Vitamins from them. It was further stated that respondent M/s. Sonam International used to extend credit facility to them on the goods being supplied to them and since he was in a financial crisis, therefore, he had allowed them to use the premises as Office on paper only, and no rent was ever taken. All post/letters received in their name, were sent to the Mumbai Office of the respondent M/s. Sonam International.
6.DRI found that Sri Nailesh Shah looked after the imports of the respondent M/s. Sonam International from Nepal into India and he also ran a manufacturing Unit at the Union Territory of Daman in the name and style of M/s. Baadar Schultz Laboratories, engaged in the manufacture of "Poultry Feed Supplement" and is a partner. Sri Nailesh Shah in view of these circumstances, had common interest in the affairs of both the firms namely, M/s. Baadar Schultz Laboratories at Daman and M/s. Sonam International at Mumbai.
7.In follow up action, the Officers of DRI at Surat detained 2225 kgs. of Vitamin E Powder, which according to the appellant, was misdeclared as "Poultry Feed Supplement-AV 110" in the Bill of Entry No.5509/03, dated 27.2.2003 filed for clearance of the same at LCS, Sonauli, at factory premises of M/s. Baadar Schultz Laboratories, Daman on 30.5.2003 under the drawal of proper Panchnama. The goods seized were sent for test and analysis to the Central Revenue Control Laboratories, New Delhi on 23.7.2003 and to M/s. Analytical Testing Corporation, Lucknow on 6.6.2003.
8.During investigation by DRI, Sri J.R. Nayak, CEO (Tech) of M/s. Baadar Schultz Laboratories, informed the DRI Officers on 20.1.2003 inter alia that he was handling the production work at the factory whereas Shri Nailesh Shah sits at Mumbai and having three partners viz., Kirtilal Shah and his two sons Nailesh & Kaplesh in M/s. Daadar Schultaz Laboratories. These three partners are also partners in other firms viz., M/s. Sonam International, M/s. Sheetal Pharma and M/s. Sheetal Enterprises whose Offices are located at Shop No.9, B-Wing, Devki Nagar, Eksar Road, Borivali (W), Mumbai. It is stated by Sri J.R. Nayak that M/s. Baadar Schultz Laboratories, used the imported vitamins/feed supplements from various countries including Nepal. However M/s. Baadar Schultz Laboratories does not import these vitamins/feed supplements rather, it was imported by M/s. Sonam International and M/s. Sheetal Pharma which are sold to other firms. These are purchased from M/s. Anivet Industries, Adarsh Nagar, Birganj, Nepal, onwed by Sri Pradeep Rungta and further sold to M/s. Baadar Schultz Laboratories, Daman, which was seized as discussed hereinabove.
9.The Analytical Testing Corporation, vide their test report dated 12.6.2003, reported that the samples of the goods are Vitamin-E powder (49.5% w/w) and is fit for human consumption, and these samples do not contain any Calcium Carbonate as declared by the importer.
10.The C.R.C.L., New Delhi, vide its report dated 29.8.2003 also informed that sample is in the form of white powder essentially composed of Vitamin-E and inorganic material mainly Silica (Ash content 43.15% w/w).
11.DRI found that these goods have got third country origin imported from Nepal and have not undergone any manufacturing process/value addition in Nepal as well as a change in the four digit HSN code conditions which are mandatory for availing duty free import benefit for Nepalese origin goods imported into India from Nepal as per provisions of Notification No.40/2002-Cus, dated 12.4.2002. Accordingly, it is found that these goods were imported from Nepal in contravention of provisions of 09/96-Cus (N.T.), dated 22.1.1996 issued under Section 11 of the Act and the goods weighing 2225 kgs., was vitamin-E powder valued at Rs.7,82,644/-, which was seized under Section 110 of the Act on 6.9.2003 by the Officers of DRI, Surat.
12.M/s. Baadar Schultz Laboratories, Daman, filed a Civil Misc. Writ Petition No.6353 of 2003 in Bombay High Court in August, 2003 for release of the goods seized by the DRI, Surat on 6.9.2003. The Bombay High Court, by an order dated 13.10.2003, directed inter alia that the department will draw three samples of the seized goods; one to be given to the petitioners, the other to be sent for chemical analysis and the third to be retained by the department. The department was given the liberty to proceed with the investigation well within reasonable time and to complete the same within 8 weeks from the date of order. The Bombay High Court has given liberty to adjudicate the matter with due compliance of principles of natural justice. The Court also directed the petitioner to cooperate with the investigation. The goods were released subject to furnishing of bank guarantee of Rs.5,50,000/- and and a bond for Rs.7,50,000/-.
13.In spite of specific observations made by Bombay High Court, various persons relating to present controversy like Sri Pradeep Pathak, the Authorised Representative of M/s. Sonam International at Sonauli, Sri Nailesh Shah initially, did not appear in spite of service of notice. Because of non-cooperation, the Revenue moved an application in Bombay High Court for extension of time to investigate the matter.
14.Later on, in response to summons issued under Section 108 of the Act, Sri Pradeep Pathak, Authorised Representative of M/s. Sonam International, appeared before the Senior Investigating Officer, DRI, Lucknow on 2.1.2004. He stated that he does work for the Company in the capacity of Authorised Representative. He admitted that Shri Ashok Agarwal, Shri Nailesh Shah, Shri Kalpesh Shah, Shri Pradeep Soni, Shri Pradeep Rungta and Shri Suresh Rungta had constituted a syndicate for import of third country origin goods into India from Nepal by fabricating the documents and showing that these goods have undergone manufacturing process in Nepal, whereas in reality no manufacturing process/activity was done in Nepal on such imported goods.
15.It has also been stated by Sri Pradeep Pathak in his voluntary written statement recorded on 2.1.2004 and 3.1.2004 that M/s. Anivet Industries, Nepal do not have any facilities for manufacturing activities at Nepal. He further stated that he initially he avoided summons because he had come to know and understand that the plans of the syndicate had been exposed and with regard to bringing third country manufactured goods by misdeclaring them as "Poultry Feed" from Nepal into India is an act of smuggling as it violates the provisions of Customs Notification No.9/96 (NT)-Cus., dated 22.1.1996, issued under Section 11 of the Customs Act, 1962 and that he could have been arrested under Section 104 read with Section 135 of Customs Act, 1962 and hence he was avoiding to appear before DRI Officers. He further stated that in reality the consignments are imported into Nepal from third countries and no manufacturing activity/process was done on them nor was there any value addition. The cost sheet and other documents are prepared to suit the provisions of the Treaty. Thus, Sri Pradeep Pathak who was instrumental on behalf of the respondent, admitted his guilt with regard to illicit import of Vitamin-E powder (AV-110) in his statement dated 2.1.2004 and 3.1.2004 before the DRI, Lucknow.
16.In view of the statements given, Sri Pradeep Pathak was arrested on 3.1.2004 and remanded to judicial custody. Bail application of Sri Pradeep Pathak was rejected by the Special Judicial Magistrate (Economic Offence), Lucknow on 5.1.2004 and by the District and Sessions Judge Lucknow, on 28.1.2004. A complaint under Section 135 (1) (b) of the Act had been filed by the prosecution in the Court of Special Chief Judicial Magistrate (Economic Office), Lucknow on 28.2.2004. In the meantime, Bombay High Court by an order dated 6.1.2004 extended time limit for investigation by 8 weeks.
17.The appellant after investigation, found that imported goods have been declared as "Poultry Feed-AV 110" in the column 6 of the said Bill of Entry meant for description of goods. The Vitamins and "Poultry Feed Supplement" are different products and have different identity under the Customs Tariff, while the former is classifiable under Chapter 29, the latter is classifiable under Chapter 23.
18.Under Explanatory Note to HSN (Chapter 23), the characteristic feature of animal feed supplement is that they essentially contain products from each of the three group of nutrients i.e., "energy" nutrients consisting of high carbohydrates, "body building" protein rich nutrients or minerals and "functional" nutrients like vitamins, trace elements and antibiotics.
19.DRI found that in the copy of Invoice No.50134 dated 25.3.2001 of M/s. Chr. OLESEN & Company GMBH (Germany) by which M/s. Anivet Industries, Nepal, have imported Vitamin-E into Nepal from Germany, contains the indication made by German Supplier in four digit HSN Code as 2936.
20.Copy of other invoice No.03SIN1846 dated 16.4.2003 of M/s. Synchem International Company Limited, China, by which M/s. Anivet Industries, Nepal have imported Vitamin-E into Nepal from China, contains the indication of Chinese supplier in four digit HSN Code as 2936.
21.In view of these documents, the DRI had inferred that M/s. Anivet Industries, Nepal, is exporting Vitamin-E into India through respondent under the garb of "Poultry Feed Supplement" which has been established by the DRI, corroborated by Lab report of goods supplied by M/s. Anivet Industries imported by respondent against Bill of Entry 5509 and found to be Vitamin-E (Classifiable under Customs Tariff Heading 2936 and falling under HSN Code 2936) and not Poultry Feed (which is classifiable under Chapter 2309 and fall under HSN Code 2309).
22.According to Notification No.40/2002-Cus., dated 12.4.2002, it is necessary that manufacturing activity/process should have been performed in the Nepal itself before importing to India under the provisions of Indo-Nepal Treaty.
23.According to report, the composition break up of the AV-110 has been shown as Vitamin-E 990 gms, BHT 05 gms and stabilizers 05 gms per kg respectively. In other report the composition break up of the AV-110 is shown as Vitamin-E as 500 gms, Carrier (Calcium Carbonate) 500 gms, BHT 05 gms and stabilizers 05 gms, per kg.
24.These two reports show different chemical compositions of the same product "AV-110" has been found which shows the Vitamin-E to the extent of almost 50%
25.In view of the above, the Revenue/appellant while proceeding ahead, took plea that importer have misdeclared the import goods and circumvented the Indo-Nepal Treaty Trade and provisions of Notification No.40/02, dated 12.4.2002 and hence liable for confiscation under Section 111 (M) of the Act.
26.A show cause notice under Section 112 of the Act was sent along with all the relevant documents which were responded by the respondents, vide reply dated 23.4.2002 (Annexure No.2).
27.The Joint Commissioner Custom had elaborately considered and discussed rival contentions and statutory provisions and reached to the conclusion that seized goods of 2225 kg Vitamin-E, 50% were imported by misdeclaring them as "Poultry Feed"/"Poultry Feed Supplement" AV-110 under the garb of Notification No.40/02-Cus., dated 12.4.2002 read with Revised Protocol to the Indo-Nepal Treaty of Trade and in violation of provisions contained in Notification No.9/96 (NT)-Cus., dated 22.1.1996 issued under Section 11 of the Act and confiscated them under Section 111 of the Act and penalty was also imposed under Section 112 of the Act.
28.Confessional statement has been made by Sri Pradeep Pathak on 2.1.2004 and 3.1.2004 to the effect that respondent M/s. Sonam International has been engaged in smuggling Vitamin-E from Nepal and M/s. Anivet Industries does not possess any manufacturing unit of poultry feed supplement. The goods under the garb of poultry feed supplement Vitamin-E is smuggled in India abusing the Indo-Nepal Treaty. It has also been stated by Sri Pradeep Pathak that M/s. Anivet Industries imports Vitamin-E from overseas and exports to M/s. Sonam International in India. Sri Pradeep Pathak retracted the statement extracted from him, vide letter dated 8.1.2004 but adjudicatory authority relied upon his statement as trustworthy and the facts and incidents are being supported by invoice dated 25.3.2001 of M/s. Chr. OLESEN & Company GMBH (Germany), showing the classification of goods imported by M/s. Anivet Industries, Nepal as Vitamin-E 50% and four digit HSN Code as 2936 respectively, the test report showing 49.57% ww Vitamin-E.
29.Sri Pradeep Pathak stated that entire work of M/s. Sonam International is looked by Nailesh Shah and he used to discuss all matters with him. With regard to import made by M/s. Sonam International, Sri Pradeep Shah stated that he received instructions from Nailesh Shah which is corroborated from the statement dated 28.6.2003 of Sri Kirti Lal Shah and the statement dated 3.6.2003 made by Sri Nailesh Shah. Thus, the retraction of Sri Pradeep Pathak seems to be after thought. The original statement given by him is corroborated by the statement of other persons, the circumstances, the test report and the imports receipts of Vitamin-E of Ms. Anivet Industries. The facts that M/s. Sonam International had supplied the goods to Proprietor of M/s. Sanjay Agencies, Valsad, was Vitamin-E, is also corroborated by the statement of Proprietor of M/s. Sanjay Agencies, Valsad, namely, Sri Sanjay P. Shah, recorded under Section 108 of Customs Act.
30.He admitted the business relationship with M/s. Sonam International and stated that he used to buy only vitamin-E from M/s. Sonam International who import and trade the same. Vitamin-E supplied by M/s. Sonam International, is being used for making broiler premix, layer premix, SK bed, SK Mix, ABDK etc., and the goods in the name of AV107 and AV 110 etc., were actually vitamins since they used to purchase only vitamin and not poultry feed supplement. The statement of Sanjay P. Shah dated 2.6.2003 is the part of notice has not been disputed by the respondents.
31.It has also been established that by the document that the composition break up of AV 110 was shown as Vitamin-E 990 gm, BHT 5 gm and stabilisers 5 gm over per kg. respectively. In view of the above, the adjudicatory authority held that goods are rightly classified under the code of HSN as 2936. The raw material namely, Vitamin-E 50% imported from third country was classified by the supplier under 4 digit HSN Code as 2936.
32.The order dated 23.4.2004 passed by the Joint Commissioner of Customs, Customs (Prev.) Commissionerate, Lucknow was the subject matter of appeal before the Commissioner (Appeals). The Commissioner (Appeals) by the order dated 13.9.2004 had disallowed the appeal, and upheld the original order passed by the adjudicating authority. The Commissioner (Appeals) also relied upon the confessional statement and test report coupled with other documents.
33.The appellate authority observed that the facts of the case clearly transpire that DRI Officers were investigating the case and were having prior cogent information that some smuggled of third country origin were being imported from Nepal to India by misdeclaring the same. The belief turned into truth after investigation and seizure of goods. The appellate authority further relied upon Section 111 of Customs Act, 1962 with regard to confessional statement and abuse of Indo-Nepal Treaty of Trade to import third country origin goods in India. It has further been held by the appellate authority that goods were imported in contravention of Notification dated 12.4.2002 and under Section 112 of Customs Act, 1962, call for for penal action. The papers were fabricated and third country origin goods were imported under the garb of poultry feed supplement.
34.Feeling aggrieved against the order of appellate authority, respondent approached the Tribunal and the Tribunal by the impugned order dated 5.4.2005, reversed the finding recorded by the authorities below.
Questions of Law:-
35.The present appeal was admitted and later on, additional questions were framed in pursuance of power conferred by Section 103 of the Act. The question of law which call for adjudication, are as under:
1.Whether the respondents can avail the benefits of Notifications No.40/2002-Cus dated 12.4.2002 read with Revised Protocol to the Indo-Nepal Treaty and the provisions of Section 11 of the Customs Act, 1962 by misdeclaring true nature, composition and identity of the subject goods?
2.Whether the subject goods have been misdeclared under chapter heading 2936 and should have been classified under Chapter Heading 2309?
3.whether the goods having nor gone through any manufacturing process at Nepal, the order of the Tribunal is bad in law in view of Notification No.9/96, 22.1.96 issued under Section 11 of the Customs Act?
4.Whether keeping in view the provisions contained in Sections 17, 46 and 47 of the Customs Act, 1962, the Bill of Entry being cleared by the appropriate authority is not open to review since the revenue has not preferred any appeal in case the revenue feels that it is a case of mis-declaration?
5.Having treaty between Nepal and Government of India and the consequential certificate, issued by the competent authority of Nepal declaring the seized goods as food supplement, whether it is not open to record a contrary finding with regard to the nature of goods seized ?
6."Whether this Court lacks jurisdiction to entertain the present appeal as per the provisions provided under section 130 of the Custom Act, 1962?
7."Whether the Board has misdeclared the classification of tariff under heading '23.09'which should have been classified under heading '29.36' of the tariff?"
Statutory Provisions:-
36.Respondent's counsel pleaded that goods imported from Nepal to India were poultry feed supplement classified under the headings 23.90 of the Customs Tariff. Hence the importation was proper and legal keeping in view the Notification dated 12.4.2002.
37.On the other hand, department has taken contrary view and stated that the goods in question, were Vitamin-E as such classifying the same under the heading 29.36 of Customs Tariff, the respondent is guilty of offence acting in contravention of Notification dated 12.4.2002 and the Notification dated 21.1.1996 issued under Section 11 of the Customs Act, 1962.
38.The heading No.23.09 includes the product of a kind used for animal feeding, not elsewhere specified or included, obtained by processing vegetables or animal materials to such an extent that they have lost essential characteristics of the original material, other than vegetables waste, vegetable residues and by-products of such processing. Annexure No.14 to the supplementary affidavit filed on behalf of Nailesh Shah authorised representative of the respondent firm M/s. Sonam International, shows that the animal fodder includes various items under the heading 23.01, 23.02 and so on. Under column of description of Article, various items have been given like flours, meals and pellets of meat or meat offal of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves; bran, sharps and other residues, whether or not in the form of pellets, derived from the sifting, milling or other working of cereals or of leguminous plants. Chapter 23 contains varieties of animal feed supplements under various headings which does not contain Vitamin-E as separate item.
39.The Government of India issued Notification dated 26.3.1996, with regard to classification of animal feed supplement under heading No.23.02 or 29.36 or Chapter 30 which provided that classification of each product being claimed as animal feed supplement, may be decided on merit in the light of guidelines given therein and in pursuance of explanatory note to heading 23.09 of the HSN read with Chapter Note 1 of Chapter 23 of the CET. Heading No.2309 relates to preparation of a kind used in animal feeding and sub-heading No.2309.10 relates to dog or cat food, put up for retail sale and heading No.2309.90 relates to other animals.
40.The heading covers sweetened forage and prepared animal feeding stuff consisting mixture of several nutrients designed:
(1)to provide the animal with a rational and balanced daily diet (complete feed);
(2)to achieve a suitable daily diet by supplementing the basic farm-produced feed with organic or inorganic substances (supplementary feed; or (3)for use in making complete or supplementary feeds.
41.Under the heading No.23.09, details of other preparations have been given the characteristics feature of which is as under:
(1)"Energy" nutrients, consisting of high-carbohydrate (high-calorie) substances such as start, sugar, cellulose, and fats, which are "burned up" by the animal organism produce the energy necessary for life and to attain the breeders' aims. Examples of such substances include cereals, half-sugar mangolds, tallow, straw.
(2)"Body-building" protein-rich nutrients or minerals. Unlike energy nutrients, these nutrients are not "burned up" by the animal organism but contribute to the formation of animal tissues and of the various animal products (milk, eggs, etc.,). They consist mainly of proteins or minerals. Examples of the protein-rich substances used for this purpose are seeds of leguminous vegetables, brewing dregs, oil-cake, dairy by-products.
The minerals serve mainly for building up bones and in the case of poultry, making egg-shells. The most commonly used contain calcium, phosphorus, chlorine, sodium, potassium, iron, iodine, etc. (3)"Function" nutrients. These are substances which promote the assimilation of carbohydrates, proteins and minerals. They include vitamins, trace elements and antibiotics. Lack or deficiency of these nutrients usually causes disorders.
42.The preparation known in trade as "premixes", are generally compound compositions consisting of number of substances, the nature and proportions of which vary according to animal products requirement. The substances are to improve digestion, to preserve feeding stuffs which serve as carriers.
43.The circular issued by the Government of India dated 26.3.1996 provides that where animal feed supplements are just inter-mixtures of vitamins only without other ingredients, except solvents, stabilizers or anti-oxidants, cannot be classified under heading 23.02 even though they are used as animal feed supplements. The Board had observed that such inter-mixtures of vitamins are specially covered under heading 29.36. The circular further provides that animal feed supplements use vitamins, pro-vitamins, amino-acids, anti-biotics, "Coccidiostats" etc., in very small quantities (micro-quantities) and that the feed supplements contain other organic and inorganic feed ingredients as well. Such micro nutrients do not have any independent identity as pure chemicals, that they cannot be easily separated into individual pure chemicals, nor do they conform to standards laid down for medicaments. For these reasons, the circular provides that preparation containing active substances (vitamins or provitamins, amino-acids, antibiotics, coccidiostats etc.) along with the said carriers would fall under Heading 23.02 of the CET provided such preparations are of a kind used in animal feeding.
44.However, heading No.23.09 of HSN, excludes product of Chapter 29 and medicaments of heading No.30.03 or 30.04. Hence while deciding classification of products claimed to be animal feed supplements, it may be necessary to ensure that the said animal feed supplements are ordinarily or commonly known in the trade as products for a specific use to animal feeding.
45.From the above description, it appears that Vitamin-E with a stabilizer or importer cannot remotely be classified under heading No.23.09 as the same is not mentioned under Chapter 23.
46.On the other hand, against the heading No.29.36 of the HSN, the description of the commodities are given as under:-
"29.36--Pro-vitamins and Vitamins, Natural or Reproduced by Synthesis (including natural concentrates Derivatives thereof used primarily as Vitamin, and the intermixture of the foregoing, whether or not in any solvent."
47.Thus, heading No.29.36 consists of kind of vitamin and their derivatives. The percentage of purity has not been mentioned under the heading No.29.36. Hence, vitamin of any purity seems to fall under the heading 29.36 in so far as it has the characteristics of vitamin. This conforms with the description of goods mentioned under heading No.26.36 of the Customs Tariff Act, 1975 and the Central Excise Tariff Act, 1985.
48.Under the heading No.29.36, Vitamin has been defined as under:
"Vitamins are active agents, usually of complex Chemical Composition, which are obtained from outside sources and are essential for the proper functioning of human or other animal organism."
Rival Submissions:-
49.Sri Rajesh Singh Chauhan, learned counsel for the appellant vehemently argued that questions framed, should be answered in favour of Revenue. while assailing the impugned order of Tribunal, he submits that Tribunal being the highest fact finding appellate authority, should have given reasons while allowing the appeal with regard to various issues factual and legal aspect adjudicated by the original as well as appellate authority. He would submit that Tribunal has not considered the factual finding as well as proposition of law recorded by the original as well as the adjudicating authority while dismissing the appeal of respondent, which renders the order substantially illegal. He would submit that the Tribunal has failed to exercise jurisdiction vested in it and the goods seized, cannot be termed as animal feed supplement and shall not fall under the heading No.23.09 but it shall fall under the heading No.29.36 as held by two authorities below.
50.Sri Chauhan has also submitted that appeal is very well maintainable because of the fact that respondent importer had committed fraud by importing Vitamin-E under the garb of animal feed supplement by misdeclaring on the basis of fraudulent, manufacturing document which shall disentitle respondent to claim benefit on the basis of clearance given by the Custom at Sonauli at the time of entry of goods.
51.It has been vehemently argued that M/s. Anivet Industries does not have got manufacturing unit in Nepal to produce animal feed supplement. Rather, it imports Vitamin-E of foreign origin and exports to India under the mask of animal feed supplement. Sri Rajesh Singh Chauhan further submitted that confessional statement retracted almost after a week or six days, shall not loose its sanctity being corroborated by other evidence and surrounding facts and circumstances. He would submit that it is not a case of routine or regular assessment or payment of custom duty where an appeal may be filed against the impugned order before the Hon'ble Supreme court. Rather, it is a case where smuggled goods were seized warranting penal action against the respondent because of fraud played through misdeclaration. In such event, the appeal is very well maintainable under Section 130 of the Act.
52.It has also been stated that concurrent finding of facts, could not have been disturbed or reversed by the Tribunal without categorically dealing with the finding recorded by the two authorities below.
53.On the other hand, Sri Naveen Mullick learned counsel representing the respondent, submitted that retracted statement of Sri Pradeep Pathak has no evidentary value and he was not the employee of M/s. Sonam International but only a clearing agent. Sri Mullick would also submit that goods seized were animal feed supplement and only because of percentage of vitamin is higher, it shall not attract the Heading No.29.36. He vehemently argued that once for two and half months, inspection was done, documents were checked by the authorities at Sonauli Check Post and released, in the absence of any appeal filed by the appellant, clearance attains finality and not open for re-assessment. He would submit that Heading No.29.36 of HSN covers only natural concentrates of vitamin in various preparation which are only vitamins. Sri Mullick submits that the appeal is not maintainable in the High Court and the appellant should have gone to Hon'ble Supreme Court, in case they are aggrieved by the order passed by the Tribunal. He submits that the order of assessment was passed under