TMI Blog1987 (12) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Schedule to Customs Tariff Act, 1975. Chapter Note 2(13) provides for sulphur sublimed or precipitated, colloidal sulphur being classified in this chapter. But both the parties agreed that classification under this chapter for the goods imported is ruled out. The competition thus is between Chapters 25 and 38. 2. A sample of the product was referred by Revenue to Keshav Prasad, Chief Chemist, Central Revenues. He by his opinion dated 27-4-1987, after referring to Encyclopedia of Chemical Technology, 3rd Edition, Vol. 22 by KIRK-OTHMER Page 97 on the meaning of Insoluble Sulphur (Crystex) and Flowers of Sulphur (sublimed sulphur) opined as under - The mineral oil used to the extent of 20% or 33-1/3% are aromatic oils or naphthenic oils which enable easier dispersion of the insoluble sulphur in rubber mixes. The oil thus is also a functional material . At the time of Import, the goods were assessed under heading 38.01/19 (as chemical). The respondents claimed reassessment under heading 25.01/32 (10) as insoluble sulphur. The Assistant Collector by different orders in case of each import held that imported sulphur is oil treated insoluble sulphur and would merit classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation on Import Tariff are interpreted and applied. On these grounds, he urged that classification under Chapter 25.01/32(10) should be set aside and Chapter 38 Heading 38.01/19 be restored and the claims for refunds be dismissed as was ordered by the Assistant Collector. 6. Controverting Sh. Sunder Rajan s submissions, Sh. V. Lakshmi Kumaran learned advocate for the respondents submitted that the issues were not properly understood by the appellants. In that connection, he drew attention to the grounds of appeal from which it appears that according to appellant, sulphur should be soluble in water. (It is well known that sulphur dissolves only in carbon di sulphide.) He submitted that treatment of insoluble sulphur with oil is not a chemical reaction and insoluble sulphur in spite of treatment with oil continues to remain sulphur. He submitted that such treatment with oil could not even properly be described as mechanical or physical process. He also relied on Note 1 of Chapter 25 which permits washing even with chemical substances eliminating the impurities without changing the structure of the products and certain other processes without affecting the classification. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -saturated solution of sulphur in rubber that occurs, when rhombic sulphur is used. No sulphur bloom will develop on the surface of uncured rubber pieces when the rubber cools after mixing or processing; therefore building tack is preserved. At curing temperatures, insoluble sulphur rapidly transforms the soluble species, dissolves in rubber and enters into the vulcanisation process. Basis of Classification of Sulphurs 3.1 Rhombic sulphur (ordinary ground sulphur) - Rhombic sulphur, which is the ordinary form of sulphur under normal conditions, is ground and classified to meet specific particle sizes requirements. The various grades of this type of sulphur contain less than polymeric sulphur, the ground types may also contain additives to enhance performances. Oil is added to sulphur to help control sulphur dust and improve dispersion in rubber. Finally, ground solid minerals are also added to improve dispersion in rubber. Ordinarily, the total additive level is 5% or less of the sulphur formulation. Many of these types of sulphur may be added to rubber compounds as 100% sulphur. 3.2 Insoluble sulphur (Polymeric) - There are two general types of insoluble sulphur and the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elting point but softens appreciably at 70 C and is a very ciscous flud at 90 C. At the latter temperature, reversion to the soluble rhombic form of sulphur sets in over a period of several hours where upon the melting point characteristics approach those of ordinary sulphur, melting at about 114 C". 10. Kirk Othmer Encyclopedia of Chemical Technology on which both the parties place reliance after referring to various Allotropic modifications of sulphur - about insoluble sulphur has following to say - Insoluble Sulfur - This form of sulfur contains upto 90% of the amorphous allotrope of sulfur and is insoluble in carbon disulfide. It is used for vulcanization of special rubber products, rubber cements, cutting oils, and high pressure lubricants . 11. The Vulcanization and Vulcanizine agents by W. Hofmann has about insoluble sulphur the following to say - Another way of preventing sulphur blooming is to use a special modified sulphur known as insoluble sulphur . The insoluble sulphur available on the market contains about 65-95% of material which is insoluble in carbon disulphide. Sulphur that is insoluble in carbon disulphide is also insoluble in rubber and therefore has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inorganic accelerators, which were in general use before the discovery of organic accelerators, sometimes necessitated such large proportions of sulphur - in order to bring about vulcanization at all that the blooming of sulphur was an everyday occurrence. Nowadays if blooming is encountered in vulcanizates, it can usually be overcome by postcuring. Naturally the blooming of sulphur from vulcanizates is not influenced by the use of insoluble sulphur unless the vulcanization temperature is considerably below 110 C." 12. The respondents Test Report Bulletin for the month of December, 1983 has following to say - The sample is oil treated insoluble sulphur content of soils 20.1% sulphur balance. 13. The relevant provisions referred to and merits of the appeals may now be discussed. Sulphur finds specific reference in Chapter 25 Mineral products of the First Schedule to Customs Tariff Act hereinafter called Customs Tariff and Chapter 28 ibid. According to note 2 (XIII) of Chapter 28, Sulphur, sublimed or precipitated, Colloidal sulphur have to be classified under this chapter. Chapter 38 is concerned with classification of Misc. Chemical products. It has already been said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , magnetic separation or other mechanical or physical processes (not including crystallisation) but not calcined or subjected to any further process other than a process specially mentioned in respect of the goods described in Note 3. 16. It would be seen that the note opens with the words Except where the context otherwise requires . It can be safely be presumed that when legislature provided for classification of insoluble sulphur under Heading 25.01/32 of the chapter, they must have been aware of the process by which this sulphur is obtained. Thus even if insoluble sulphur be not in the crude stage, it would not go out of the chapter because in the context of insoluble sulphur even if not in crude state, specific enumeration in the chapter and heading is there. 17. As for the other argument that sulphur has been treated with oil and has thus been subjected to a process not permitted by the note, it is sufficient to say that the note permits a number of treatment like washing even with chemical substances eliminating the impurities without changing the structure of the product crushing, grounding, powdering, levigating, sifting, screening concentration by flotation, magneti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia provides that the classification of goods consisting of more than one material or substance, shall be according to the principles contained in Rule 3. Material portion of Rule 3 has been reproduced above. We have already said above how description insoluble sulphur under Chapter 25 Heading 25.01/32.10 is more specific to general or residuary descriptions under Chapter 38. Its classification under Chapter 25 would be in conformity with Rule 3(a). Further Rule 3(b) is clear as to classification of mixtures and composite goods which consists of different materials or made up of different components and which cannot be classified by Revenue to sub-rule (a). In such a case, the classification has to be on the basis of material or component which gives the goods their essential character and in the present case, there can be no doubt that essential character to the goods is given by insoluble sulphur. 21. In view of our finding above that applying Rule 3(a)classification under specific Heading 25.01/32.10 - Insoluble sulphur would be more appropriate and preferable to Chapter 38 Misc. Chemical Products, recourse to Rule 3(b) would appear unnecessary. But if for any reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
