Case Law Details
In re BASF India Limited (CAAR Mumbai)
The question raised in the applicant’s application for Advance Ruling was whether the said Vitamin Premixes were classifiable under Heading 23.09 or under Heading 29.36. The said question raised in the applicant’s application is the same as in number of matters decided by the Appellate Tribunal and Courts, which in fact had been relied upon by the applicant in the proceedings for advance ruling before this Hon’ble Authority and which are herein after referred to. Consequently, in view of the bar contained in Section 28-1 (2) of the Act, the Application for advance ruling filed by the applicant could not in law, have been proceeded with and decided upon. That the Advance Ruling Application was filed on account of a bona fide mistake on part of the applicant. However, the same was erroneously accepted and an Order was passed. Therefore, the Advance Ruling dated 08.07.2022 is void in the light of the proviso to the Section 81(2) of the Customs Act, 1962, and it is accordingly prayed that the said ruling dated 8 July 2022 be recalled/rectified/modified.
In this regard, I find that even though the applicant has cited many case laws and have said that they are similar and identical goods however in the absence of test reports and details of the composition of the goods, they cannot be treated as identical or similar goods.
The interesting fact is the applicant has approached the Authority only in respect of the current application and has sought to recall, modify, rectify or make the ruling void ab-initio. They claimed the applicability of the case laws in respect of other cases also and the same case laws were relied in most of them. However, they have not sought to make the rulings in those cases void ab-initio as most of them are favorable to them. This clearly reveals that the applicant has not approached this forum with clean hands and have tried to twist facts and laws to circumvent the ruling.
FULL TEXT OF THE ORDER OF CUSTOMS AUTHORITY OF ADVANCE RULING, DELHI
M/s BASF India Limited (hereinafter referred to as the “applicant”) vide their Application dated 20.04.2022 had sought for advance ruling on the classification of vitamin premixes which was decided vie Ruling no. CAARIMum/ARC/24/2022 dated 08.07.2022.
2. The applicant has now filed three different applications against the above ruling for Recall of the Ruling vide email dated 01.09.2022, Modification of the Ruling vide application dated 06.09.2022 and Rectification of mistake of the Ruling vide application dated 06.09.2022 under the Regulation 21 and Regulation 22 of the Customs Authority for Advance Rulings Regulations, 2021 (hereinafter CAA R, 2021).
3. A personal hearing in respect of all these applications was held on 20.09.2022 and the same was attended by Shri Vishwanathan, Advocate. Shri Javdeep Patel, Advocate. Ms. Ashwini Shantharam, Advocate, and Shri. Ganesh Borge, Manager, BASF India Ltd.
3.1. The representatives explained the factual matrix of their CAAR I application giving factual and legal details after discussing the Supreme court ruling, 04-0 passed by Principal Commissioner of Customs, NS- I and accepted by Chief Commissioner of Customs, Zone-II, Mumbai and HSN explanatory notes with respect to CTH 2309. They requested seven days’ time period for submission. They also invited the attention to the provisions of proviso to subsection 2 of section 28 of the Customs Act 1962.
3.2. I will now take up each application one by one and discuss them in detail. As far as the application for rectification of mistake of the Ruling under Regulation 22 of the Customs Authority for Advance Rulings Regulations, 2021 vide letter dated 06.09.2022 is concerned, a separate corrigendum is being issued for the same.
4. Application for Recall of the Ruling vide email dated 01.09.2022.
4.1. The applicant has submitted that their submissions with regard to the judgement of Tetragon Chemie P. Ltd., GST Circular and Order of the Jurisdictional Commissioner have not been considered in the Ruling.
4.2. In this regard, I find that the ruling has discussed in detail and distinguished the judgement of the Hon’ble Supreme Court in the case of Tetragon Chemie P. Ltd. reported in 2001 (132) E.L.T 525 (S.C) at para 6.7 of the Ruling. It was also pointed out at para 3.3 and 3.5 of the Ruling that applicant’s global desk classifies the same product under CTH 2309. As far as the GST Circular is concerned. the same has been discusses at para 3.4 of the Ruling to decide why the said product cannot be classified as animal feed.
4.3. Therefore, the submission which the applicant had mentioned as not considered has been duly considered and discussed in detail. As far as the order of the Jurisdictional commissioner is considered, the same was never brought to the notice of the Authority during the course of the submission of the application, personal hearing or written submission and in any case it is not binding on the Authority.
4.4. In any case there is no provision for recall of the Ruling pronounced by the Customs Authority for Advance Ruling either under the Customs Act. 1962 or under the CAAR. 2021.
Therefore, I reject this application made by the applicant for Recall of the Ruling filed vide email dated 01.09.2022.
5. Application for Modification of the Ruling under Regulation 21 of the CAAR, 2021 vide letter dated 06.09.2022.
5.1. The applicant submitted that the case-laws cited by them on products identical/similar to the products concerned in the present Ruling. have not been considered in their true spirit in the Ruling issued, and adequate findings have not been provided for differentiating the case-laws submitted by the applicant. Thus, the applicant submits that a mistake of law has taken place in the Ruling issued and thus the Ruling issued must be modified.
5.2. In this regard I find that applicant had relied on many case laws in their letter dated 27.06.2022 wherein they submitted a common synopsis for five different applications. Their main reliance was on the judgement of Hon‘ble Supreme Court in the case of Tetragon Chemie (p) Ltd. Vs. Collector of C.Ex., Bangalore reported in 2001 (138) E.L.T. 414 (Tri.-LB) which was upheld by the Hon’ble Supreme Court and reported in 2001 (132) E.L.T. 525(S.C). The other judgements were mainly relying on the ratio of the judgement of the Hon’ble Supreme Court. This judgement of the Hon’ble Supreme Court has been discussed and distinguished in detail in the Ruling at para 6.7 of the Ruling.
5.3. In this regard I find that the Hon’ble CESTAT in the case of COPAL MILLS Vs. Commissioner of C.EX., Chandigarh-I reported in 2002 (146) E.L.T. 212 (Tri. – Del.) has held as follows:
“Each and every decision referred to by any of the party to the litigation is not required to be considered in the Final Order It is well settled law that the power of rectification is confined to the mistake apparent from the record. A mistake apparent on the record must be obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. A decision on debatable law or facts is not a mistake apparent from the record and the debatable issue could not be the subject of Order of Rectification. It has been held by the Supreme Court in the case of Vasudeo Vishwanath Saraf – AIR 1986 SC 2105 that it is not necessary that an Order must he a lengthy one recording in detail all the reasons that played in the mind of the Court in coming to the decision.”
5.4. The same ratio has been held in various other decisions by the Hon’ble Courts, some of which are as are follows:
a) Rashtriya Chemicals & Fertilizers Ltd. Vs. Union of India, 2013 (293) ELT. 667 (Born)
b) Anubhav Enterprises vs. Commissioner of Central Excise, Delhi-II, 2018 (360) ELT. 1014 (Tri-Del.) upheld by Supreme Court, 2018 (360) ELT. A300 (SC)
c) Anurag Trading Company Vs. Commissioner of Customs, New Delhi, 2018 (360) 558 (Tri-Del)
5.5. The applicant has also made certain written submission vide their mail dated 26.09.2022 making the following submissions:
The question raised in the applicant’s application for Advance Ruling was whether the said Vitamin Premixes were classifiable under Heading 23.09 or under Heading 29.36. The said question raised in the applicant’s application is the same as in number of matters decided by the Appellate Tribunal and Courts, which in fact had been relied upon by the applicant in the proceedings for advance ruling before this Hon’ble Authority and which are herein after referred to. Consequently, in view of the bar contained in Section 28-1 (2) of the Act, the Application for advance ruling filed by the applicant could not in law, have been proceeded with and decided upon. That the Advance Ruling Application was filed on account of a bona fide mistake on part of the applicant. However, the same was erroneously accepted and an Order was passed. Therefore, the Advance Ruling dated 08.07.2022 is void in the light of the proviso to the Section 81(2) of the Customs Act, 1962, and it is accordingly prayed that the said ruling dated 8 July 2022 be recalled/rectified/modified.
5.6. In this regard, I find that even though the applicant has cited many case laws and have said that they are similar and identical goods however in the absence of test reports and details of the composition of the goods, they cannot be treated as identical or similar goods. Therefore, it is not possible to blindly rely on the case laws submitted by the applicant. In this regard, I reply upon the judgement of Hon’ble Supreme Court in the case of CCE, Calcutta vs. Alnoori Tobacco Products reported in 2004-TIOL-85-SC-CX wherein it was held as follows:
“13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two caves. Disposal of cases by blindly placing reliance on a decision is not proper.
14. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.”
“Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is’ to keep the path to justice clear of obstructions which could impede it. “”
5.7. Further, the applicant has now stated that there are various case laws pertaining to the subject goods. therefore the authority could not have passed an order under the Section 28-1 of the Act. In this regard, as far as applicability of the case laws are concerned the same has been discussed and distinguished in the Ruling. Further, it is also seen in the preceding Para how these are not identical or similar goods.
5.8. The applicant had filed 5 different applications seeking Advance Ruling on the same. The personal hearing in respect of all these applications were held on the same date viz. 01.06.2022. Post hearing the applicant had made a common submission vide letter dated 27.06.2022 citing all the case laws which they have again submitted in their submission dated 26.09.2022. The details of the Rulings are as follows:
5.9. The interesting fact is the applicant has approached the Authority only in respect of the current application and has sought to recall, modify, rectify or make the ruling void ab-initio. They claimed the applicability of the case laws in respect of other cases also and the same case laws were relied in most of them. However, they have not sought to make the rulings in those cases void ab-initio as most of them are favorable to them. This clearly reveals that the applicant has not approached this forum with clean hands and have tried to twist facts and laws to circumvent the ruling.
5.10. In view of the above finding, I do not find any merit in this application made by the applicant for modification of the Ruling under Regulation 21 of the CAAR, 2021 vide letter dated 06.09.2022 and reject the same.
