TMI Blog1986 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-5-1982 passed by the Appellate Collector of Central Excise, Madras in Appeals filed by M/s. Fertilizer and Chemicals Travancore Ltd., Udyogmandal. On the setting up of this Tribunal, these matters have been transferred here and are now being treated as appeals before us. Since both matters relate to the same issue, these are being disposed of by this common Order. 2. As per the show cause notices issued by the Central Government, the facts are that the respondents are manufacturing ammonium chloride of 99.8% purity. It is stated that this is intended for use as a chemical. However, from 5th July, 1974, this ammonium chloride had been cleared by the respondents under Item 14HH of the Central Excise Tariff as fertilizer. A classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the fact that ammonium chloride figured in Notification No. 164/69 did not mean that all grades of ammonium chloride were covered under Notification. For these reasons it appeared to the Central Government that it would be incorrect to classify impugned ammonium chloride as fertilizer. 3. Shri A.S. Sundar Rajan, the learned departmental representative has reiterated the view taken in the show cause notice to the appellants. He points out that the test report of the FACT Control Laboratory had shown that the ammonium chloride was of high technical purity. It was being cleared to industrial consumers as chemical and only a small percentage of the product was cleared as fertilizer. Therefore, whether one applies the test of marketing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loride which can be sold as a fertilizer as per Schedule I of the Fertilizer Control Order. It is pointed out that there is no warrant for the view that the purity of the product affects its essential character. The product is, in fact, being marked and marketed as a fertilizer. High purity is only on account of lesser moisture content and this does not affect the character of the item nor its price. So far as the claim for benefit under the relevant notification is concerned, it is not restricted in terms of end use of the product. In fact, it exempts ammonium chloride used in the manufacture of dry cell batteries. Therefore, it is pointed out, as per notification itself, ammonium chloride is classifiable as a fertilizer under Item 14 HH o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Assistant Collector of Central Excise, Cochin and Others - 1979 E.L.T. (J. 653). 3. Dunlop India Ltd. and Madras Rubber Factory Ltd. v. Union of India and Others (S.C.) - 1983 E.L.T. (1566). 4. Glaxco Laboratories (India) Ltd. v. Union of India and Others - 1985 (21) E.L.T. 72 (CEGAT. Bombay). It is further argued that when there is a specific entry which covers the goods in question i.e.. Tariff Item 14 HH, there is no warrant to remove the classification to the orphanage of the general entry, i.e.. Item 68 of the Central Excise Tariff. In this connection, the appellants have cited the decision in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. v. Union of India and Others - 1983 E.L.T. 1566. Even if two alternative v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR are that the impugned product is a concentrate without the other essential nutrient content as specified in the Fertilizer Control Order. Secondly, it is stated that Item 14 HH is a functional entry where it is relevant whether the product is or is not a fertilizer and, therefore, it is pertinent to go into the question as to what end use is and whether the product is used as a fertilizer or not. 6. We have carefully considered the facts of the case and the submissions made by both sides. We find that Notification No. 164/69-C.E. dated 11th June, 1969 exempts fertilizers of specified description under Item No. 14HH of the First Schedule to the Central Excises and Salt Act, 1944 subject to conditions already specified. The fertilizers s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or technical grade, if used as a chemical in dry cell batteries is specifically covered for the exemption. 7. The Department has referred to the Fertilizer Control Order as well as the Glossary of Terms used in Fertilizer Trade and Industry (IS 1304-1980). But this has been an exercise in futility as reference to both these authorities only establishes that ammonium chloride of high technical purity as well as lower purity is fully covered in the broad specifications applicable to fertilizers. In this situation, the burden of proof that the product in question, is not a fertilizer is on the Department and they have failed to discharge this burden. In view of the definitions contained in the Fertilizer Control Order, Glossary of Terms us ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
