TMI Blog1996 (6) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 29.42. Hence this appeal. 2. Arguing for the appellants, learned Advocate submits that whereas for customs duty, Chapter Heading 29.42 is correct, for purpose of CVD, proper heading would be 38.08 since this entry specifically refers to `fungicides . The authorities below have wrongly held that `Dodine imported by them as `fungicide is only a `fungicidal chemical . The lower authorities have pressed into service Notification No. 33/91-C.E., dated 25-7-1991 to hold against them. This reliance is totally misplaced. Purpose of an exemption Notification is to exempt goods and not to supply the norms for classifying the goods. In support of his contention, he places reliance on the case of CCE, Vadodara v. Gujarat State Fertilizers Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the product as such. In the case of B.H.C. technical grade, it was held by the Tribunal in the case reported in 1985 ECR 1392 that BHC is a pesticide. Similarly, dilution cannot be held to be a criterion as held by the Tribunal in the case of C.C.E. v. Markfed Agro Chemicals reported in 1993 (68) E.L.T. 848. The Order No. 40/2/95-CX of CBEC issued under Sec. 37B of CESA, 1944 clarified that dilution of technical grade pesticides by addition of solvents etc. amounts to manufacture. This order was however quashed by the Hon ble Delhi High Court in the case reported in 1996 (14) RLT 629 (Del.). The High Court discussed the Tribunal s order in the case of Markfed Agro Chemicals and in the light of that, quashed Board s order. He sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purity or packing by itself cannot be pressed into service in taking away the impugned goods from Central Excise Tariff Heading No. 38.08 and pushing them under Heading 29.42. 4. Arguing for the Revenue, learned DR submits that what is relevant for the customs purpose is the form in which the goods are presented for assessment and whether subsequent process amounts to manufacture is not relevant. In support of his contention, he cites the case of Khandelwal Metal and Engineering Works and Another etc. v. Union of India and Others [1985 (20) E.L.T. 222 (SC)]. In regard to Notification, he submits that while this would not be determinative of the issue, it could certainly be pressed into service as a guide in the given situation. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically refers to fungicides, the goods cannot be taken away from their legitimate parentage of 38.08 and consigned to an orphanage of a residuary item like 29.42. 6. What is contested by the authorities below is that these are `fungicides chemicals and not `fungicides . A Reliance, in this connection, has been placed on Notfn. No. 33/91-C.E., dated 25-7-1991. This Notification exempts goods falling under Chapter 29 of Schedule Excise Tariff, 1985 when used within factory in the manufacture of specified goods annexed to Notification from the whole of duty of excise leviable thereon. The goods in the Table are, among others, the goods falling under sub-heading 3808.10. We do not find that this Notification in any way helps the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are the guides. In the case of Mechanical Packing Industries Pvt. Ltd. v. Union of India and Another [1987 (32) E.L.T. 35 (Bom.)], it was held by the Bombay High Court that exemption Notifications cannot provide norms or standard for classification of article. Similarly, the Andhra Pradesh High Court in the case of International Packing Industry v. CBEC, New Delhi and Others [1987 (32) E.L.T. 317 (AP)] held that the contention that laminated jute bags having been described as falling under Item No. 68 and not under Item 22A in the Notification, dated 6-6-1979, it must be presumed that it falls under Item No. 68 and not under Item 22A has no merits. The object of the Notification was only to exempt from the whole of duty of excise leviable o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a pesticide or not came up for consideration before the Tribunal in the case of M/s Alkali Chemicals Corpn. of India v. CCE, Calcutta [1987 (29) E.L.T. 635 (Tri.) = 1985 (ECR) 1392 (T)]. The Tribunal held that BHC technical formulation finds variety of uses as insecticide and pesticide. In the case of CCE v. Markfed Agro Chemicals [1993 (68) E.L.T. 848 (T)], the Tribunal held that processing of concentrated basic pesticidal chemicals carried out through addition of inert carriers/solvent and dispersing and stabilising agents resulting in their dilution would not amount to manufacture as no new product having distinctive name, character and use came into existence. Considering the nature of the product, we are of the view that essentiall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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