Commissioner of Central Excise Vs. Deepak Fertilizers and

Commissioner of Central Excise vs Deepak Fertilizers and

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided May 21, 2004

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Citation: sooperkanoon.com/35345
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: J Balasundaram, A M Moheb
Decided On: May 21, 2004
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Deepak Fertilizers and

Advocate Shri. Gajendra Jain

Excerpt

.....product is directly used as fertilisers. the department agrees that ammonia is used as a fertiliser and no evidence was brought out by the department that the product is otherwise used and the balance of convenience will rest in favour of the manufacturer.3. the learned sdr, shri a. shukla argued that ammonia is specifically mentioned in tariff item 14h whereas it is not so specifically mentioned under 14hh. a specific entry would prevail over a general entry. further ammonia has several other uses as a chemical and fertiliser is only one of the uses. the end use certificate is irrelevant and when that product falls under a particular tariff item.the learned ca, shri gajendra jain appearing for the respondents, argued that ammonia is rightly classifiable under 14hh. it is not disputed that the goods in question were used as a fertiliser as evidenced from the end use certificates produced by the manufacturer.he relied on the decision of the tribunal in the case of c.k. suresh & co. v. cce (1990) (49) elt 371). the tribunal held that ammonium nitrate, although not mentioned in the erstwhile tariff, would fall under 14hh of tariff in terms of trade notice issued by cbec.cc v. kumudam publications (p) ltd. (1997) (96) elt 226) wherein the supreme court held end use is not entirely irrelevant while deciding the classification under the customs tariff. he further argued that the department approved the classification of the products under 14hh subject to production of end use certificate. this clearly shows that the department has taken into consideration the fact of end use while determining the classification of the impugned goods.5. we have examined the rival contentions. it is true that there is a specific entry for ammonia in the erstwhile tariff. it is equally true that fertilisers, all sorts, are covered under 14hh. we observe that 14hh is a latter entry in the tariff. when there are rival entries the principle is to classify the goods in the entry which.....

Full Judgment

1. This is a Revenue's appeal against the order of the Commissioner of Central Excise (Appeals). In the impugned order, the Commissioner held that liquid and solid ammonia is classifiable under 14 HH in the erstwhile tariff even though there is a specific entry under 14H. The rival entries read as follows:- 14H - GASES including liquefied or solidified gases, the following, namely - 14HH - Fertilisers, all sorts, but excluding natural, animal or vegetable fertilisers when not chemically treated. (Fertilisers are exempt from the whole of excise.) 2. The Commissioner held that ammonia is classifiable under 14HH as the product is directly used as fertilisers. The Department agrees that ammonia is used as a fertiliser and no evidence was brought out by the Department that the product is otherwise used and the balance of convenience will rest in favour of the manufacturer.

3. The Learned SDR, Shri A. Shukla argued that ammonia is specifically mentioned in tariff item 14H whereas it is not so specifically mentioned under 14HH. A specific entry would prevail over a general entry. Further ammonia has several other uses as a chemical and fertiliser is only one of the uses. The end use certificate is irrelevant and when that product falls under a particular tariff item.

The Learned CA, Shri Gajendra Jain appearing for the respondents, argued that ammonia is rightly classifiable under 14HH. It is not disputed that the goods in question were used as a fertiliser as evidenced from the end use certificates produced by the manufacturer.

He relied on the decision of the Tribunal in the case of C.K. Suresh & Co. v. CCE (1990) (49) ELT 371). The Tribunal held that ammonium nitrate, although not mentioned in the erstwhile tariff, would fall under 14HH of tariff in terms of trade notice issued by CBEC.CC v. Kumudam Publications (P) Ltd. (1997) (96) ELT 226) wherein the Supreme Court held end use is not entirely irrelevant while deciding the classification under the customs tariff. He further argued that the department approved the classification of the products under 14HH subject to production of end use certificate. This clearly shows that the department has taken into consideration the fact of end use while determining the classification of the impugned goods.

5. We have examined the rival contentions. It is true that there is a specific entry for ammonia in the erstwhile tariff. It is equally true that fertilisers, all sorts, are covered under 14HH. We observe that 14HH is a latter entry in the tariff. When there are rival entries the principle is to classify the goods in the entry which comes latter.

Insofar as the argument that ammonia is specifically mentioned in the entry under 14H we observe that fertiliser is an equally specific entry in so far as ammonia is concerned. In the present case it is not disputed that the product is used as fertiliser. This position is understood by both the parties. We also observe that the entry under 14HH does not exclude any goods elsewhere specified. So long as it is not disputed that ammonia is a fertiliser and in this case specifically used as fertiliser the benefit of exemption cannot be denied to the product.

The notification exempting the fertilisers from payment of duty does not exclude ammonia when used as fertiliser. For the above reasons, we hold that ammonia is classifiable under tariff item 14HH of the erstwhile Central Excise Tariff.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Deepak Fertilizers and Same Subject Service Tax Same Judge J Balasundaram, A M Moheb