Bombay High Court
Basf India Ltd vs The Principal Commissioner Of Customs, ... on 9 August, 2024
Author: K.R. Shriram
Bench: K.R. Shriram
2024:BHC-OS:12178-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by PRACHI
ORDINARY ORIGINAL CIVIL JURISDICTION
PRACHI PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2024.08.13
12:24:05 +0530
CUSTOMS APPEAL NO.40 OF 2022
BASF India Ltd. ....Appellant
V/s.
The Principal Commissioner of Customs,
Nhava Sheva-I, (JNCH) & Ors. ...Respondents
----
Mr. V. Sridharan, Senior Advocate a/w Mr. Sriram Sridharan & Ms. Srinidhi
Ganesan for appellant.
Mr. Siddharth Chandrashekhar a/w Mr. Umesh Gupta for respondent no.1.
Mr. Harshad Shingnapurkar for respondent no.2.
----
CORAM : K.R. SHRIRAM &
JITENDRA JAIN, JJ.
DATE : 9th AUGUST 2024
P.C. :
1 This is a statutory appeal filed under Section 28KA of the
Customs Act, 1962 ("the said Act") impugning an order dated 8 th July 2022
passed by respondent no.6. Various grounds have been raised in the appeal.
2 The appellant is a leading transnational company in the Indian
Chemical Industry and a global supplier of innovative feed additives for
livestock, aquaculture and companion animals. Appellant imports and
trades in various categories of products used in the preparation of animals
feed supplements. One such group of products are Vitamin Pre-mixes
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imported from appellant's parent company and other third parties for use in
the manufacture of animal feed/supplements.
3 The products which are subject matter of this appeal have been
listed in paragraph 7 of the appeal memo.
4 Appellant had filed an application dated 3 rd June 2019 for
Advance Ruling under Section 28H of the Act. The impugned order has
been passed in the said application holding that the goods imported would
be classifiable under heading 29.36 of the Customs Tariff Act, 1975 and not
23.09 as was the case of the applicant.
5 We have perused the impugned order and we are convinced
that impugned order dated 8th July 2022 is required to be quashed and
matter is required to be remanded for de novo consideration.
6 The first reason for this decision of us is in paragraph 6 of the
impugned order, it is stated therein that "........... I proceed to pronounce
my ruling on the basis of information available on record as well as
information gathered from other reliable sources." What are these
information that was gathered, which were the sources, from whom it was
gathered, is not disclosed and more importantly these information were not
communicated to appellant for its response.
7 The second reason for our decision is in paragraph 6.7 of
impugned order. Respondent no.6 states that the product in the present
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case is different from that of the product in case of Tetrogon Chemie
(Collector of Central Excise, Bangalore) Vs. Tetrogon Chemie P. Ltd. 1. The
product described in the impugned order appears to us to be the same in
both the cases. In our view, respondent no.6 should have elaborated as to
how two are different. We say so because both appears to be the same
because the order passed by Central Excise Service Tax Appellate Tribunal
(CESTAT) in Tetragon Chemie Vs. Collector of Central Excise, Bangalore 2
which was confirmed by the Apex Court in Tetrogon Chemie (supra)
describes the product and it appears to be the same. Therefore, respondent
no.6 ought to have elaborated further as to why, according to respondent
no.6, the products were different.
8 In paragraph 6.8 of the impugned order, respondent no.6 has
relied upon the judgment of the Hon'ble High Court of Allahabad in case of
Sonam International3. Mr. Sridharan, on instructions, states that this
judgment was not even brought to the notice of appellant during the course
of hearing and appellant was not given an opportunity to deal with or
distinguish the same.
9 In paragraph 3.4 of the impugned order, respondent no.6 is
referring to Circular No.80/54/2018-GST dated 31st December 2018 issued
1 2001 (132) E.L.T. 525 (S.C.)
2 2001 (138) E.L.T. 414 (Tri.-LB)
3 2012 (275) E.L.T. 326 (All.)
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by Ministry of Finance, Department of Revenue (Tax Research Unit) which
was relied upon by appellant but there is no discussion nor any finding in
the impugned order on the said circular and its applicability.
10 Appellant had also placed reliance on an adjudication order by
respondent no.1 passed on 23 rd August 2021 in the case of M/s. Kantilal
Manilal & Co. Pvt. Ltd. In the said case, identical product was the subject
matter of consideration and respondent no.1 has accepted that product
would fall under classification of 2309. Respondent no.6 should have
considered this order-in-original in case of Kantilal Manilal & Co. Pvt. Ltd.
(supra) which has not been done.
11 Mr. Chandrashekhar submitted that respondent no.6 has, in the
impugned order, stated that he has considered all materials placed before
him in respect of the subject products and has gone through submissions
made by appellant during the personal hearing. In our view, that would not
suffice because he was, in such a case, also duty bound to deal with the
submissions of appellant and give the reason as to why he disagreed with
the submissions of the appellant.
12 Mr. Chandrashekhar states that Explanatory Notes to the
Harmonized System of Nomenclature (HSN) would answer the issue
involved. In our view, though these have been referred to, they have not
been considered or discussed in proper perspective.
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13 In these circumstances, we hereby quash and set aside the
impugned order dated 8th July 2022 and remand the matter for de novo
consideration.
14 Respondent no.6 shall pass a reasoned order dealing with all
submissions of appellant on or before 15 th October 2024. Before passing any
order, he shall give a personal hearing to appellant, notice whereof shall be
communicated atleast 5 working days in advance.
15 After the personal hearing, should appellant wishes to file any
written submissions recording what transpired during the course of
personal hearing, same shall be filed within 3 working days of personal
hearing and that shall also be dealt with in the final order.
16 Appeal disposed in above terms.
(JITENDRA JAIN, J.) (K.R. SHRIRAM, J.)
