- (1.) The issue raised in the present appeal is whether Vitamin E -50 is classifiable under Chapter 2309.00 as "Prawn Feed" and therefore eligible for the benefit of partial exemption from duty under Notification No. 20/99, dated 28 -2 -1999. On 28 -2 -1999, the Respondent imported a consignment of Vitamin E -50 powder (Feed Grade) and filed Bill of Entry No. 8207, dated 19 -8 -1999 for clearance of the same, claiming benefit of concessional rate of duty at 5 per cent under the aforesaid Notification No. 20/99 at Serial No. 20 which reads as follows:
(2.) The Order -in -Original reasoned: "Thus from the above, it is unambiguously clear that item under import cannot be considered as 'Prawn Feed' to claim the benefit under notification No. 20/99. In this regard the importers, have relied upon Hon'ble Supreme Court judgment in Sun Export Case [ : 1997 (93) E.L.T. 641 (Supreme Court)] wherein it was held that Animal Food supplement such as Premix of AD3 (Feed Grade) which are generally added to animal feed are also covered by the generic term 'Animal Feed'. I have carefully gone through the above referred judgment of Hon'ble Supreme Court. The dispute in this case was whether goods such as pre -mixed Vitamin AD3 etc. are Animal Feed are classifiable under Chapter 23 and thus eligible for exemption under Notification 234/82. The Hon'ble Supreme Court in very clear terms has laid down that animal feed supplement or animal feed concentrate are covered by the generic term 'Animal Feed' and thus are eligible for exemption under notification 234/82 -C.E. In view of above decisions of Hon'ble Supreme Court, I find that chemical ingredients such as Vitamin E which are imported on same carrier such as Silica Maize etc., and are used for manufacture of 'Animal Feed' are to be considered as Animal Feed supplement and hence should be considered Animal Feed for the purpose of Animal Feed supplement and hence should be considered Animal Feed for the purpose of classification under CTH 23 of Customs Tariff. However, as far as benefit of Notification 20/99 (CUS) is concerned, the benefit of notification is available to 'Prawn Feed' only and not to 'Animal Feed' as was the case under notification No. 234/82 -C.E. 'Animal Feed' is a generic term and may include 'Prawn Feed', Poultry Feed, Cattle Feed and feed supplements as held by the Hon'ble Supreme Court in the above noted case. Whereas the benefit of notification No. 20/99 is available to 'Prawn Feed' which is a restrictive terms unlike the terms 'Animal Feed'. Various High Courts and the Hon'ble Supreme Court in their various judgments has laid down that there should be strict interpretation of the notification. Hon'ble Supreme Court's judgment in M/s. Rajasthan Spinning and Weaving Mills Limited v/s. Collector : 1995 (77) E.L.T. 474 (S.C.) is worth mentioning here wherein it is laid down that, "Liberal construction which enlarge the term and scope of notification is not permissible". As discussed in foregoing paras and as admitted by the importers themselves the items imported are not 'Prawn Feed' as such but are only ingredients/constituents for Animal Feed. In view of the findings above, it is very clear that items imported under abovesaid B/E viz., Vitamin E 50 Feed grade is ingredients for manufacture of 'Prawn Feed'/Animal Feed, and by no stretch of imagination can be considered as 'Prawn Feed' as such and thus not eligible for benefit of concessional rate of duty under notification No. 20/99. In view of above finding I order that benefit of notification No. 20/99 is not available to items imported under B/E No. 8207, dated 19 -8 -1999 and the same should be assessed at standard rate of duty as applicable under Chapter Heading 2390 of CTH. However, in view of the Department's SLP pending in Hon'ble Supreme Court on the identical issue, the assessment be made on provisional basis in the manner indicated above."
(3.) Against the said order, an appeal filed to the Commissioner of Customs was successful and the Commissioner of Customs relying upon the decision in 'Sun Export Corporation, Bombay v/s. Collector of Customs, Bombay and Anr. : 1997 (6) SCC 564 : 1997 (93) E.L.T. 641 (S.C.) allowed the appeal in favour of the Assessee.;