9911796707
TMI Blog1997 (8) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the respondent herein as to why the product Dimethicone B.P.C., being a low polymerised product be not classified under sub-heading 3910.00 and the other items be not classified under sub-heading 3823.90. It was also alleged in the said notice that benefit of Notification 31/88-C.E. would not be available since none of the products fall under Chapters 28, 29 and 30 of the Schedule to Central Excise Tariff Act, 1985. 1.3 On adjudication, after considering the written and oral submissions of the respondent, the Assistant Collector vide his Order-in-Original dated 31-3-1989 upheld the classifications of various aforesaid products as proposed in the show cause notice and also consequently denied the benefit of Notification 31/88-C.E. Following findings were given by the Assistant Collector :- (a) Dimethicone BPC is an unmixed product whereas all other items of the classification list are chemical mixtures of Simethicones or Dimethicones along with other chemicals. (b) Relying on Kirk Othmer's Encyclopaedia, he held that if the silicone fluid has not plasticity or resinous property, it is only because of its low degree of ploymerisation. Chapter 39 of the Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt herein have succeeded. He accepted the respondent's contention that the product under consideration have therapeutic and prophylectic use, these have been manufactured as per pharmacopoeial standards and have two or more constituents, these are medicaments in terms of Chapter Note 2(1) (a) of Chapter 3 of the Central Excise Tariff and are thus classifiable under Heading 3003.20. 1.5 Hence this appeal by the Revenue. 2.1 Learned SDR, pointing out to the grounds of appeal in the appeal memo filed by the Revenue has stated that the respondent itself has declared in classification list "Dimethicone BPC is an unmixed product" with chemical name "Polydimethylsiloxane". Collector (Appeal)'s finding that it is a mixture of "two or more constituents" is against the said declaration and the facts on record. Chapter Note 2(1) (a) of Chapter 30 would not be applicable to the said product Dimethicone BPC. The other items have been declared as mixtures of different chemicals. Such mixtures, when manufactured, are residuary chemical products and, therefore, classifiable under Tariff Heading 3823.90. 2.2 It has also been pointed out that in view of the foregoing classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the case of Hico Products (supra) is not applicable to the new tariff effective from 28-2-1986. The controversy in that case was whether Dimethicones and Simethicones, manufactured in conformity with pharmacopoeial standards were classifiable under the erstwhile Tariff Item 15A or Item 68 read with the relevant exemption notification. Present tariff is based on H.S.N. having elaborate section notes and chapter notes which have statutory force. Further, the tariff headings and sub-headings have to be construed in accordance with rules for interpretation of the tariff. He drew attention to the following observations of the Apex Court in Para 9 of Hico Products case :- "The principle governing is that if the case does not fall under any of the specific items mentioned in the tariff either expressly or by means of exemptions, explanations, or otherwise, then place can be found in residuary Item 68". Learned advocate, therefore submits that the Apex Court's judgment in Hico Products has no bearing on the present matter and it should be examined independently. 3.2 He submits that Dimethicones and Simethicones are products of 'two or more constituents' as is indicated from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture". 4.1.3Heading 38.23 & sub-heading 3823.00 38.23 3823.00 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; residual products of the chemical or allied industries, not elsewhere specified or included 20% 4.1.4Note 1 to Chapter 38 "This chapter does not cover : .......... (a) ..... (b) Medicaments (Heading No. 30.03)" (c) 4.1.5Heading No. 30.03 & sub-heading 3003.20 30.03 Medicaments (including veterinary medicaments) 3003.20 Medicaments (other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homoeopathic or Biochemic systems. Nil 4.1.6Note 2(i) to Chapter 30 For the purposes of Heading No. 30.03: 2. (i) 'Medicaments' means goods (other than goods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within Heading No. 30.02 or 30.04 which are either :- (a) Products comprising two or more constituents which have been mixed or compounded together for therapeutic or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also observe that the respondent itself has declared the said product as 'unmixed product' in the classification list filed by it. To that extent, finding by the lower appellate authority, in so far as Dimethicone BPC is concerned, that it is a product comprising two or more constituents is not correct. Consequently, Note 2(i) (a) to Chapter 30 of the Central Excise Tariff treating it as a 'medicament' would not be applicable, despite its having therapeutic and prophylactic uses. It is not denied that 'Dimethicone BPC' is otherwise a silicone in primary form. Consequently tariff sub-heading 3910.00 for the said product "Dimethicone BPC", as held by the Assistant Collector is upheld and the lower appellate authority's finding classifying it under sub-heading 3003.20 is set aside. 5.3 As regards the other products there is no dispute that these are products of two or more constituents [see sub-para (a) of para 1.3 above]. It was also held by the Assistant Collector that the rest of the products are "preparations of silicones" meaning thereby that these are not silicones in primary from. [This view may require re-examination at least in respect of some of the products under con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
