CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Final Order No. 20267 / 2014
Application(s) Involved:
C/Early Hearing/29258/2013 in C/27716/2013-DB
s) I 2
€/27716/2013-DB
[Arising out of Order-in-Appeai No. 08/2013 dated
06/09/2013 passed by the Commissioner of Customs,
Central Excise and Service Tax, Guntur]
Office of the
Commissioner (A.R.)
13 MAR 201,
3f Industries Ltd.
Survey No.1604, APIIC-IALA,
Epuru-18, Pantapalem Village,
Muthukur Mandal - 524 323,
SPSR Nellore Dist.
Andhra Pradesh Lu
f Swatom.
Versus
Commissioner of Customs,
Central Excise and Service Tax
Guntur
P.B. No. 331, C.R. Building,
Kannavarithota,
Guntur - 520 004,
Andhra Pradesh
Respondent(s)
Appearance:
Mr. A.K.S. Moorthy, Authorized
Rep. For the Appellant
Mr. A.K. Nigam, AR For the Respondent
CORAM:
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER
HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER
Date of Hearing: 24/02/2014 Date of Decision: 24/02/2014
tbs
veOrder Per: B.S.V. MURTHY
Even though early hearing application has been listed for hearing
and the stay application filed by the appellants earlier had been
rejected by this Tribunal vide Miscellaneous Order No, 27391 &
27393/2013 dated 26.09.2013, we Proposed to take up the appeal
Itself for final hearing in view of the submissions by the appellant that
appellant had imported 2300 MT’s of Crude Palm Oil on 28.05.2013
and the appellant Is suffering huge amounts as demurrage and storage
charges and financial loss and also in view of the decision of the
Hon‘ble High Court in the appeal filed by the appellants dated
03.12.2013 wherein the Hon’ble High Court directed the Tribunal to
decide the Issue preferably within a period of one month from the date
of communication of their order.
2, Heard both the sides. The issue involved is whether the Crude
Palm Oil imported by the appellant can be cleared availing exemption
under Notification No, 12/2012 dated 17.03.2012. The SI. No. 51(II)
(A) covers the item in dispute before us and which reads as under:
‘Chapter
or
S. | Heading | Description of Standard | Additional | Condition
No. | or sub- goods. rate duty-rate No.
heading or
tariff item
51 15 | heading 1511, Nil - 5The No. 5 written in the last column is the condition for
importation. According to this condition, the concessional rate is
available “if the Importer follows the procedure set out In the Customs
(Import of Goods at Concessional Rate of Duty for manufacture of
Excisable Goods) Rules, 1996".
2.1. The sample of the product imported by the appellant was tested
by the Food Analyst and according to him the acid content was 10.14,
According to the Prevention of Food Laboratory Act, appellant can get
the same tested by Central Good Laboratory if they are not happy with
the report of Food Analyst, Accordingly the appellant get this tested by
Central Food Laboratory who reported the acid content as 10.06. The
Proceedings were Initiated to deny the benefit on the ground that the
Product imported by the appellant Is not covered by oll of edible Crude
and therefore exemption is not available. For taking a view that
appellant is not eligible for the exemption and oll cannot be treated as
edible crude, reliance was placed on Food Safety and Standards (Food
Products and Food Additive) Regulations 2011. According to 2.2.19 of
the regulations,
“19, Palm oil means the oil obtained from fleshy mesocarp of fruits
of the oi! palm (Elaeis Guinensis ) tree by the method of expression
or solvent extraction, It shall be clear, free from rancidity,
suspended or other foreign matter, separated water, added
colouring and flavouring substances or mineral oil. It shall
conform to the following standards, namely:-
Butyro-refractometer reading at 50°C 35,5-44.0
or
Refractive Index at 50°C 1.4491-1.4552
Melting point (capillary slip method) Not more than 37°C
Iodine value (Wij’s method) 45-56
Saponification value 195-205,
wyUnsaponifiable matter Not more than 1.2 per cent
Acid value Not more than 10.0
Indigenously produced raw Palm Oil obtained by method of
expression may be supplied for human consumption as such
provided acid value is not more than 6.0. But palm oil imported
into the country or produced by solvent extraction shall be
refined before it is supplied for human consumption and it shall
conform to the standards laid down under regulation 2.2.1 (16).
Additionally, it shall have Flash Point (Pensky-Marten Closed
Method)-Not less than 250°C Test for argemone oil shall be
negative. However, it may contain food additives permitted in
these Regulations and Appendices. The oil 0 refined shall not
contain Hexane more than 5.00 ppm.”
3. ‘The learned authorized representative on behalf of the assessee-
importer submitted that the report of the Chemical Examiner was not
at all provided to the appellant even though a request was made and
he draws our attention to the record of personal hearing at page No,
168 of the appeal memorandum. The Central Revenue Control
Laboratory report was not at all provided to the appellant and after
request was made by them during the personal hearing it was
provided on 02.07.2011. In the meanwhile since the appellant did not
have the CRCL report and report of Food Analyst was against them,
the appellant had requested for sample test by the CFL which also
ultimately came against them. The original adjudicating authority as
well as the appellate authority have relied upon the reports of Food
Analyst and CFL and CRCL repot has been ignored. He relied on the
decision of this Tribunal in the case of Asst. Commissioner of Cus. &
C.E Vs. Nikhil Refineries (P) Ltd. to submit that the Revenue cannot
Ignore CRCL report. Further It was also submitted that relying upon the
decision of the Hon‘ble High Court of Kolkata in the case of Goku!
Refoils Solvents Pvt. Ltd. Vs. Union of India & ors. reported in [2012
(278) E.L.T. 433 (Cal.)j and the decision of the Hon’ble High Court of
Gujarat in the case of Cargill India Pvt. Ltd. & Ors. Vs. Union of India
reported In [2013 (288) E.L.T. 209 (Guj.)] that even if the acid value
be5
is more than 10, the imported oll cannot be treated as non-edible oil
since the oil is allowed to be cleared subject to the condition that it
should be refined and thereafter only sold. The relevant paragraphs of
the decision of the Hon‘ble High Court of Gujarat wherein the
regulation under ppm cited above has been considered Is reproduced
below:
“3.25 Accordingly, in terms of the said provisions under
Regulation 2.2.1{16}, it is categorically and ex facie evident that
the standards prescribed under the said rules ie. under
Regulation 2.2.1 and sub-headings 2.2,1 (1) to 2.2.1(24} are for
“edible oils” and that after manufacture of edible oil the
requirement of packaging and labelling are also mandatory. In
other words, the overall reading of Regulation 2.2.2(19) will
clearly show that the imported Palm Oil has necessarily to be
refined to conform to the Standards under Regulation 2.2.1(16)
and 2.2.1(19} except with regard to Acid Value to be less than
0.5% before the same can be sold for human consumption.”
Taking note of the regulations and also taking note of the fact
that appellants are expected to refine the oll and thereafter only
release the oil into the market and therefore at the stage of Import,
the oil cannot be considered as a non-edible crude, Hon’ble High Court
of Gujarat as well as the Hon'ble High Court of Kolkata held that
exemption benefit under Notification No. 21/2002 has to be allowed.
The present notification Is a successor notification of the earlier
notification and the conditions remain the same. At this stage the
learned AR submits that the fact that it has to be refined and
thereafter only it should be released and after refining itself would
show that at the time of importation, the oil is not of edible crude and
therefore does not become eligible for exemption. We are unable to
Consider this submission In view of the decision of the Hon’ble High
Court of Gujarat taking a view that exemption would be available
under this heading.
4. In view of the above observations, we consider that the
appellant is eligible for the benefit of notification and accordingly the
appeal is allowed with consequential rellef, if any, to the appellant. At
You6
this stage, the authorized representative requests that the order may
be issued by Dasti since the appellant has incurred heavy demurrage
and suffered heavy financial losses. We consider the request to be
reasonable and order the Registry to do so.
(Order dictated and pronounced In open court)
Quereotands
oe
(S.K. MOHANTY)
JUDICIAL MEMBER