Agro Pack Vs C.C.E. & S.T (CESTAT Ahmedabad)
CESTAT Ahmedabad held that the product ‘MIRACULAN’ which primarily contains Traicontanol 0.05% by weight is a product under the category of Insecticides and cannot be considered as the plant growth regulator.
Facts- The appellant is engaged in the manufacture of ‘MIRACULAN’ falling under chapter subheading no. 38083040 of CET, 1985 and applying the provision of section 4A of Central Excise Act, 1944 for valuation purposes by taking abatement of 35% on MRP value as per notification no. 02/2006-CE (N.T.) dated 01.03.2006.
Commissioner (A) contended that nowhere it is mentioned that product ‘MIRACULAN’ is an insecticide containing Triacontanol 0.5% by weight is registered as Plant Growth Promoter’.
Conclusion- It can be seen from the decision of the tribunal, in the case of Bahar Agrochem & Feeds Pvt. Ltd., that the similar product which contains Traicontanol has been classified as insecticide and not a plant growth regulator and since the issue at hand is similar to the one decided by the above decision, we hold that the product ‘MIRACULAN’ which primarily contains Traicontanol 0.05% by weight is a product under the category of Insecticides and cannot be considered as the plant growth regulator.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellant is engaged in the manufacture of ‘MIRACULAN’ falling under chapter sub heading no. 38083040 of CET, 1985 and applying provision of section 4A of Central Excise Act, 1944 for valuation purpose by taking abatement of 35% on MRP value as per notification no. 02/2006-CE (N.T.) dated 01.03.2006. The said notification was amended by another notification no. 11/2006-CE (NT) dated 29.05.2006 effective from 01.06.2006. Under this notification, the rate of abatement in respect of plant growth regulator falling under CETH 38083040 was reduced from 35% to 30%. The appellant continued to clear their product namely ‘MIRACULAN’ taking abatement at the rate of 35% from their MRP value even after 31.05.2006.
02. It has been the contention of the department that the product literature of the said product ‘MIRACULAN’ as given on the website of M/s. Dow Agro Science, USA which reveals that since ‘MIRACULAN’ contains Traicontanol as active ingredient and the same is used as plant growth regulator for increasing yield of the agriculture products. It has further been contended by the department that the appellant’s product is solely marked by M/s. Dow Agro Science as plant growth regulator and since the marketing agency considers the subject product as Plant Growth Regulator, the appellant’s should have claimed abatement of 30% only from their MRP Value after 01.06.2006.
2.1 On the basis of the above contentions, a show cause notice dated 30.06.2008 came to be issued on the following points;
(i) the product viz. “MIRACULAN” should not be classified under Chapter Sub-heading no. 3808 3040 as “Plant Growth Regulator” during the period from 1/6/2006 to 29/12/2006 and thereafter because change in Tariff sub heads from 29/12/2006, and therefore the subject product should be classified under Chapter Sub-heading no. 3808 93 40;
(ii) The amount of duty Rs. 1195677/- (Rs. 846626/- (+) Rs. 349051/-) claimed as Refund vide their applications dated 26/5/2007 and dated 15/4/2008 should not be rejected under the provisions of Section 11B of Central Excise Act, 1944.
The above referred show cause notice was adjudicated by Order-In-Original dated 06.06.2011 wherein, the learned Deputy Commissioner confirmed the charges of the show cause notice primarily on the ground that the sample of the product namely ‘MIRACULAN’ was sent for the chemical test to Chief Chemical Examiner, Central Excise & Customs, Vadodara with a specific query from the department to ascertain as to whether the product is plant growth regulator or plant growth promoter. The chief chemical examiner in its report has confirmed that the sample contains of 0.05% Traicontanol and it may be considered as a plant growth regulator. The learned Deputy Commissioner accordingly, rejected the refund claim of the appellant and held that the product under consideration is nothing but a plant growth regulator and not plant growth promoter. An appeal was preferred by the appellants before the Commissioner (Appeals) against the above mentioned order of the learned Deputy Commissioner which was decided by the Commissioner (Appeals) vide his Order dated 28.05.2012 upholding the views of the Order-In-Original. The appellants are before us against the above impugned order-in-appeal.
2.2 It has been the contention of the appellants that their product ‘MIRACULAN’ is a plant growth promoter and not a plant growth regulator. It has been mentioned that they have been classifying their product under chapter sub heading no. 38089340 of Central Excise Tariff Act, 1985. It was during the audit of the records by the department that audit party objected to their classification saying that the product manufactured by them is not plant growth promoter but a plant growth regulator and therefore, this should be classified under chapter sub heading no. 38083040 of the Central Excise Tariff Act, 1985. It is further been forcefully submitted by the appellant that their product ‘MIRACULAN’ primarily contains Traicontanol which is an insecticide and the product ‘MIRACULAN’ is being only a plant growth promoter and not plant growth regulator and in support of their claim they produced the label pasted on the bottle of ‘MIRACULAN’ which categorically mentions that the product content therein is a plant growth promoter.
03. Learned advocate appearing for the appellant has also relied upon case laws of BAHAR AGROCHEM & FEEDS PVT. LTD. V/s. CCE- 2007 (213) E.L.T. 33 (Tri.-Mumbai), CCE V/s. BAHAR AGROCHEM- 2008 (221), E.L.T. 6 (S.C.) and BAHAR AGROCHEM & FEEDS PVT. LTD.- 2012 (277) E.L.T. 382 (Tri.-Mumbai). It has also been contention of the learned Advocate that duty was paid by them under protest and therefore, it was required for the department to issue show cause notice under the provision of Section 11A of the Central Excise Act, 1944 even after filing refund claim within the prescribed time limit, no show cause notice under Section 11A has been issued to them.
3.1 As regard to classification of their product namely ‘MIRACULAN’, the main contention of the learned advocate has been as under :-
i) The case of the department is that the product, in question, is a ‘Plant Growth Regulator’ falling under the Chapter Sub Heading No.38083040/38089340 and hence the rate of abatement should have been considered @30% instead of 35%.
ii) In this case, the appellant further submits that the contentions of the department are not backed by any documentary evidences as the said product is not a plant growth regulator but it is simply a sort of an insecticide which enhances and promotes the growth of the plant. ‘MIRACULAN’ contain ‘Tricontanol’ which is an insecticide and the said product contains only 0.5% by weight. The said product i.e., MIRACULAN is being marketed only as Plant Growth Promoter and not as Plant Growth Regulator. Further, the said product, namely ‘MIRACULAN’ is also registered in India as Plant Growth Promoter with the Directorate of Plant Protection Quarantine and Storage, Faridabad.
iii) As regard the contention of the Commissioner (A) that ‘nowhere it is mentioned that product ‘MIRACULAN’ is an insecticide containing Triacontanol 0.5% by weight is registered as Plant Growth Promoter’. The appellant has submitted that in the Annexure to the said certificate, it has specifically been mentioned the wordings ‘PLANT GROWTH PROMOTER TRICONTANOL’ 0.5% EC’. On the basis of above it has thus been submitted that the Commissioner (A) has erred in holding their product as Plan Growth Regulator. It is also further submitted that the contentions of the department do not have any technical basis. Further, in the following case, the Hon’ble Tribunal has already decided that the ‘Triacontanol’ is not a ‘Plant Growth Regulator’
