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2024 (3) TMI 366 - AT - CustomsClassification of goods on the basis of use - Goods imported ground glass described as ‘BIOMIN F-Ground Glass (Fluoro Calcium Phospho-Silicate)’ and ‘BIOMIN C-Glass (Chloro Calcium Phospho-Silicate) - used in the manufacture of toothpaste - classified under Customs Tariff Item (CTI) 3207 4000 Or under CTI 3824 9990. Whether the plastic pallets which have been used for packing the imported goods, requires to be classified separately? Whether the imported goods along with packing material is liable to be confiscated for alleged violations of the Customs Act, 1962? HELD THAT:- As the product under dispute is ground glass described as ‘BIOMIN FGround Glass (Fluoro Calcium Phospho-Silicate)’ and ‘BIOMIN C-Glass (Chloro Calcium Phospho-Silicate), it could be made out that these are covered more specifically by the description of CTI 3207 4000 as ‘glass frit’ and ‘glass in the form such as powder, granules or flakes’. Further, the contending classification under CTI 3824 9990 as ‘other’ under the residual entry of ‘other chemical products and preparations of the chemical or allied industries’, which is not elsewhere specified or included, residual entry. Further, in terms of the explanation given by the appellants the imported goods are being used in the manufacture of toothpaste, and thus these are not related to chemical or allied industry. Thus, we are of the considered view that for legal purposes, as per GIR-1, the classification of impugned goods under CTI 3207 4000 is appropriate. Classification of ‘plastic pallets’ - In the present case, the imported goods have been presented along with the ‘plastic pallets’ as packing containers, and thus there appears to be no requirement for a separate classification in terms of GIR-5 above. Further, the finding in the impugned order that the packing containers in this case are of repetitive use, is also contrary to the facts. In this case, the ‘plastic pallets’ has been claimed in the impugned order and by original authority as ‘packaging containers’ for repetitive use and hence are rightly classified separately under CTH 39 23. However, we do not find any document or detail in the Bill of entry to indicate that the plastic pallets are of durable containers for repetitive use. The CBEC in its clarification vide Circular No. 69/2002-Customs had clarified that any goods/containers used for packaging or transporting other goods, and capable of being used several times, would fall in the category ‘containers of durable nature’, which are exempt from import duty under Notification No.104/94-Customs. Thus, we do not find any merits in the impugned order on this aspect and hence the same is not sustainable. Imposition of penalty - We do not find any material evidence placed during the adjudication proceedings by the authorities below, to arrive at the conclusion that there was mis-declaration in the description of the goods or in classification of the goods, in order to claim that the appellants have violated the provisions of Section 111(m) ibid. Thus, we conclude that the products under consideration i.e., (i) ‘BIOMIN F-Ground Glass (Fluoro Calcium Phospho-Silicate)’ and (ii) ‘BIOMIN C-Glass (Chloro Calcium Phospho-Silicate) would appropriately be classifiable under Customs Tariff Item (CTI) 3207 40 00 and not under CTI 3824 99 90, as claimed by Revenue. Further, we also conclude that there no separate classification required to be adopted in respect of (iii) ‘plastic pallets’ used as packing container or packing material, when presented along with the imported goods. Therefore, by setting aside the impugned order, we allow the appeal in favour of the appellants.
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