TMI Blog2009 (3) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Chapter 25. While comparing the entries in Chapters 25 and 38, it appears that the item would more appropriately be classified under Chapter 25 because the entries are more specific in Chapter 25 - Chapter 38 deals with miscellaneous chemical preparations – Impugned item is classifiable under CH 2519 90 40 - C/475/2008 - 160/2009 - Dated:- 2-3-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) S/Shri Kartik Kurmya, Advocate and T.R. Krishnamoorthy, Sr. Manager (Commercial), for the Appellant. Shri V.P.C. Rao, SDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - This appeal has been filed against the Order-in-Appeal No. 3/2008 dated 4-3-2008 passed by the Commissioner of Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned goods would be classifiable under CH 2519 90 40 as Magnesium Oxide. (ii) The impugned goods cannot be classified under Chapter 3824 as that Chapter deals with Chemical Preparations while the impugned goods is not Chemical Preparations but a mixture of naturally occurring substances. (iii) The Adjudicating Authority finalized the assessment under Chapter 38. The appellants approached the Commissioner (Appeals). Even the Commissioner (Appeals) upheld the order of the lower authority. It was argued that the long standing practice of classifying the goods under Chapter 25 cannot be changed without change in facts. The findings of the lower authority are internally inconsistent and self-contradictory. In the Adjudication Order, the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etic separation or other mechanical or physical processes (except crystallization), but not products that have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading." He stated that this Note has been interpreted by the Hon'ble Apex Court in the case of Deepak Agro Solution Ltd. v. CC, Maharashtra - 2008 (227) E.L.T. 52 (S.C.). Our attention was invited to para 17 of the said decision which is reproduced below: "17. Chapter Note 1 of Chapter 25 starts with the words "except where their context or Note 4 to this Chapter otherwise requires". It is, therefore, difficult to hold that the headings of the Chapter would cover only the products which are in the crude state or comes within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before sintering; other magnesium oxide, whether or not pure 2519 10 00 Natural magnesium carbonate (magnesite) 2519 90 Other: 2519 90 10 Fused magnesia (natural) 2519 90 20 Dead-burnt (sintered) magnesia 2519 90 30 Magnesium calcined (other than dead-burnt) not elsewhere specified or include 2519 90 40 Magnesium oxide 2519 90 90 Others whereas under Chapter 38.24, it is as follows:- 3824 Prepared binders for foundry moulds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included. 3824 90 O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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