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460 EXCISE LAW TIMES [ Vol. 372

sioner (Appeals) has dismissed the appeal of the appellant on merits and though
holding that it was mandatory for the department under Section 17(5) of Cus-
toms Act, 1962 to issue its speaking order, rejecting some appeals, stating that
they are time-barred being filed beyond the condonable period from the date of
Bill of Entry. Hence, these appeals.
2. Learned Counsel for the appellants submits that the lower adjudicat-
ing authority has not applied his mind and arrived at an erroneous decision
based on a circular issued by the Ministry of Finance which is not condonable
under law; the material purchased and used by the appellants for poultry feed
supplement; they have rightly classified under Chapter 23. They relied upon the
following cases :
(i) Sun Export Corporation v. CC - 1997 (93) E.L.T. 641 (S.C.) wherein it
was held that supplements of animal feeds which are generally
added to the animal feed were also covered by the generic term ‘an-
imal feed’.
(ii) CCE v. Surendra Cotton Oil Mills & Fert. Co. - 2001 (127) E.L.T. 3
(S.C.) wherein it was held that animal feed includes animal supple-
ments also.
(iii) Tetrogon Chemie (P) Ltd. v. CCE - 2001 (138) E.L.T. 414 (Tri. - LB)
wherein it was held that vitamin sued for mixing in animal feed will
be classified under Chapter 23 of CET.
(iv) CC v. Lal Chand Bhimraj - 2007 (220) E.L.T. 189 (Tri. - Chennai)
wherein it was held that vitamins mixed with dilutants which are
used as an additives to the main feed for livestock are to be consid-
ered under Chapter 23.
(v) CCE v. India Packaging Products 2002 (142) E.L.T. 18 (S.C.) wherein it
was held that HSN Explanatory Notes are not only persuasive but
are entitled for greater consideration in the classification of the
goods.
3. Appellants further contended that Ld. Commissioner (Appeals)
though accepted that the issue of speaking order vide Section 17(5) of the Cus-
toms Act, 1962 was mandatory, held some appeals to be barred by time. They
relied upon the following cases :
(i) Woods Struck Furniture Pvt. Ltd. v. UOI - 2011 (269) E.L.T. 327 (S.C.)
(ii) HMT Ltd. v. CC, Chennai - 2009 (239) E.L.T. 239 (Kar.)
(iii) HDFC Bank Ltd. v. UOI - 2011 (271) E.L.T. 175 (Kar.)
4.1 Learned AR, for the department, reiterates the issues considered
while finalizing the provisional assessment and submits that as per general rules
of interpretation, when the goods are prima facie classifiable under two or more
headings, classification has to be done according to the heading which provides
the most specific description than to headings providing a more general descrip-
tion. The case of Tetrogon Chemie (supra) does not refer to yeast and other cases
referred by the appellants are not relevant to the present facts of the case. She
relies upon the following cases to support that classification of the goods is cor-
rect under 2102 20 00 :
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