Per S.S.Sekhon:

The dispute in the present case relates to classification of Brine Shrimp Eggs imported by the respondent from USA. The imports made by the respondents, prior to the imports involved in the present appeal, were all along classified by the Department under sub-heading No. 2309.90 of the Customs Tariff. The Bills of Entry relating to the imports in question were also assessed under sub-heading 2309.90 and the goods were allowed to be cleared accordingly.

2. The Assistant Commissioner issued a notice to show cause dated 18.8.1998 alleging that the same were classifiable under sub-heading 0511.91 and not under sub-heading 2309.90 and on this basis differential duty was also sought to be demanded. The Assistant Commissioner, however, by his Order dated 6.10.1988 rejected the submissions made and confirmed the demands made in the show cause notice. On appeal being filed by the importers the Commissioner (Appeals) was pleased to restore the classification under sub-heading 2309.90 by the following order:-

"I have carefully gone through the records of the case and heard the appellant. It is the case of the department that the goods covered under Heading 05.11.91 and not under Heading 2309.90 for the following reasons:

1) As per Deputy Chief Chemist (D YCC) report dated 24.1.1996, the goods were found to be comprising of artemiacysts.

2) As per chapter note 1 (b) of chapter 3, fish products unfit for human consumption are classifiable under chapter 5.

3) The imported goods do not conform to conditions stipulated in chapter note to chapter 23 and as such are not classifiable under chapter 23.

4) Artemia is specifically covered under Heading 05119901.10 of ITC (HS) Classification of Export and Import items and this classification is based on harmonised system of nomenclature. Therefore, goods are classifiable under Heading 0511.91.

5) Since chapter 5 provides more specific description than chapter 23, the goods are classifiable under chapter 5 in terms of Rule 3 (a) of the rules of interpretation of Customs schedule.

The appellant contented that the goods are correctly assessable under Customs Tariff Item number 2309.90 and are fully exempted from the duty under serial number 17 of the table to notification number 11/97-Cus. dated 1.3.97. In terms of chapter note to chapter 23, heading 23.09 includes animal feeds, not elsewhere specified or included, obtained by processing vegetable or animal materials to such an extent that they have lost the essential characteristics of the original material. Regarding classification under heading 23.09 there is dispute on 2 accounts. Firstly the goods (i.e. shrimp eggs), in view of lower authority, have not lost essential characteristics of the original material since these are to be hatched before feeding to larval prawns. Secondly these being artemia cyst, as per test report, are specifically covered under heading 05119901.10 of ITC(HS) classification of Export and Import Items.

Appellant contended that chapter 5 does not cover edible products whereas goods imported being prawn feed were edible. Lower authority has observed that in interpreting any statute the meaning of the words used therein has to be understood in the context in which it is used and not in isolation. The word "edible" in ordinary parlance means "food". That this reference to food in chapter 5 refers to food for human beings is clear from the chapter note 1 (a) of chapter 3 which clearly lays down that fish products unfit for human consumption are classifiable under chapter 5. Viewed in this context the word "edible" would mean food which is fit for human consumption. By no stretch of imagination this can be stretched to include food fit for animals. Many animals feed on organic waster. For example: pigs are known to feed on excreta. But excreta cannot be considered as food just because it is being consumed by animals. I agree with the view taken by lower authority and hold that the impugned goods were inedible not excl