TMI Blog2002 (3) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... same is classifiable under SH 3401.20. The grounds urged by the Revenue before the Commissioner (Appeals) have been noted by Commissioner (Appeals) in para 2 of his order and for the purpose of convenience, same are reproduced herein below :- 2. As the said order passed by the Assistant Commissioner of Central Excise, Dindigul was not proper and legal, Commissioner of Central Excise, Madurai has issued directions under Section 35E for filing an appeal against the said order on the following grounds :- (1) The product Vim dish wash bar is a mixture of surface active agent, abrasive materials and other chemical ingredients. It is claimed to be a scouring bar for cleaning utensils and other dishes. As per the claim of the manufacturer, the surface active agent acts on the surface of the dishes by reducing surface tension and converts the soil, grease and oily matters into a state of solution or dispersion which is later washed away and the abrasive materials helps to polish or brighten the dish by friction. Thus it is evident that the actual cleaning is by the surface active agent and that the abrasive materials help only to shine the dish/utensils. (2) By virtue of Note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Collector of Central Excise, Shillong v. Woodcrafts Products Ltd., [1995 (77) E.L.T. 23 (S.C.)], for resolving any dispute relating to tariff classification, the HSN notes can be a safe guide. This has also been reiterated by SC in the case of Collector of Central Excise v. Bakelite Hylam Ltd., 1997 (91) E.L.T. 13 (S.C.). Hence going by the HSN notes referred to above, the product Vim Dish Wash Bar is correctly classifiable under heading 34.01 only. (5) The argument that Vim powder is being classified under heading 34.05 and hence Vim Dish Wash Bar should also be classified under the same heading is no argument in view of the more specific Note 2 of Chapter 34. (6) The argument that Chemical Examiner has given an opinion that the classification of the product would be under heading 34.05 is also not relevant as the Chemical Examiner is not expected to classify the products but only to give test results of the products sent for testing. Even the test report given by the said Chemical Examiner clearly shows that the product Vim Dish Wash Bar is in the form of Bar and is composed of water soluble inorganic compounds and synthetic organic surface active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be used for all purposes for which the soap is used. VIM dish wash bar is not a soap per se. Soap is invariably used for the washing of human body and washing of clothes. The abrasive detergent cannot be so used for either purposes because of the presence of a large percentage of abrasives used. Thus, the product, an abrasive detergent is not usable as soap and, therefore, it would not fall under sub-heading 3401 as it is neither a soap nor useable as soap. (iii) Heading 3204 dealing with organic surface active agent does not cover abrasive preparations containing surface active agents (scouring pastes and powders). They are indicated as falling under 3405 vide note (d) on page 486 of HSN under Heading 3402. This clearly enunciates that an abrasive preparation, despite its containing surface active agents is classifiable under 3405. As per Rule 3(b) of Rules for Interpretation of the schedule, the detergent abrasive is a com posite article, containing an abrasive component, a detergent compo nent, fillers and additives. It is, therefore, to be classified by the component which gives its essential character. The abrasive, which is by far the largest single component is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 34.05 as contended by the respondent. Their contention that as per Rule 3(b) of Rules for Interpretation, their products has to be classified by the material which gives its essential character and the abrasive which is the largest single component is a deliberate introduction into the product, the same has to be classified as a scouring preparation, is also not valid in view of the fact that Rules for Interpretation applies only if the product could not be classified by applying Rules 1 and 2 of the Rules for Interpretation. Rule 1 lays down that the titles of Sections and Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the provisions hereinafter contained. Note 2 of Chapter 34 specifically provides for the classification of such composite products. Interpretative Rule 3(b) is therefore, not applicable in the instant case. 5. The respondents have also pleaded that the Order-in-Original No. 84/86 dated 31-5-96 has already been reviewed by the Commissioner as is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above provisions since Vim dish wash bar is in the form of a bar, the same is correctly classifiable under Heading 34.01 even though it may be containing abrasive powders fillers etc. Heading 34.01 covers soap, organic surface-active products and preparations for use as soap, in the form of bars, cakes, moulded pieces or shapes. Since the Vim dish wash bar is in the form of a bar and the same is used as soap the same is specifically classifiable under heading 34.01 read with Note 2 of Chapter 34 supra. Therefore, the contention of the appellant that Vim dish wash bar is not a soap because the soap is invariably used for washing of the human body and washing of the clothes and the abrasive detergent under discussion cannot be used for either purposes, is not tenable in view of the provisions contained in Note 2 of Chapter 34. Whether the Vim dish wash bar is containing abrasives or fillers is not material and the product has to be classified under Heading 34.01 only and therefore, the question of its classification under Heading 34.05 does not arise because that Heading covers only scouring pastes and powders and similar preparations. Since the Vim dish wash bar is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rface-active products and similar preparations. Neither in common parlance the item is understood as laundry soaps, toilet soaps, disinfect soaps or medi cated soaps. Such soaps available in the market are intended for use by rubbing with body or clothes for washing purpose. While the item Vim Dish Wash Bar is used for cleaning kitchen utensils and it belongs to the family of scouring preparations such as vim cleaning powders and liquid and vim dish wash bar which contains higher percentage of abrasives and which cannot be used on human body or clothes. The item is rubbed on the surface of the utensils with a scrubber, which is vetted, the bar is touched and a little amount of the content of the bar is taken and thereafter with an abrasive action, the utensils in question is cleaned. Hence the function of dish wash bar is akin to scouring powder sold as Vim cleaning powder except that vim dish wash bar is in the solid form of mass. It was noticed that the ingredients which is in major composition are all abrasive material like china clay, feldspar, calcite which is more than 78% and the assessee is adding only 12 to 14% of acid slurry which acts as surface active agent. But these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparations for use as soap in the form of bars, cakes, moulded pieces or shapes . 13. Appellants have produced before us, the details of ingredients of its percentage was also relied before the authorities. The same is extracted herein below : INGREDIENTS OF VIM DISH WASH BAR Sr. No. Ingredient Percentage Soluble/Insoluble Level of Hardness (MOH) 1. Acid Slurry 12.00% to 15.00% Soluble - 2. Soda Ash 4.50% to 6.00% Soluble - 3. Sodium Tri Poly Phosphate 1.50% to 3.00% Soluble - 4. Sodium Silicate 8.00% to 10.30% Soluble - 5. China Clay 22.00% to 26.00% Insoluble 1 6. Feldspar 28.00% to 32.00% Insoluble 6-6.5 7. Calcite 12.00% to 14.00% Insoluble 3 8. Hyd. Lime 1.00 to 2 00% Insoluble - 9. Yellow Colour 0.03% to 0.05% - 10. Green Colour 0.05% to 0.10% - 11. Magnesium Sulphate 2.00% to 4.00% Soluble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Interpretation should be applied for the purpose of classification. 16. The explanatory notes to HSN are having persuasive value and they are required to be adopted for the purpose of classification. Keeping these two points under consideration, we have to proceed to see as to whether the item can be classified under sub-heading 3405.40 of CET as claimed by the appellants and as upheld by the Asstt. Commissioner in Order-in-Original No. 84/96 dated 31-5-96. The explanation given to the item soap as appearing at page 518 of HSN under heading 34.01 is noted herein below : (1) SOAP Soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms. In practice, part of the fatty acids may be replaced by rosin acids. The heading covers only soap soluble in water, that is to say true soap. Soaps form a class of anionic surface-active agents, with an alkaline reaction, which lather abundantly in aqueous solutions. There are three categories of soap: Hard soaps, which are usually made with sodium hydroxide or sodium carbonate and comprise the bulk of the ordinary soaps. They may be white, coloured or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 1(f) above, the soaps of this heading are generally in the following forms : bars, cakes, moulded pieces or shapes, flakes, powder, paste or aqueous solution. 17. As can be seen from the above explanation, the soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms and it will be soluble in water that is to say true soap. The categorization of soap has been given therein. The Chapter Note 2 to Chapter 34 clearly indicates that Heading No. 34.01 covers abrasive powders only if in the form of bars, cakes or moulded pieces or shapes. It also states that abrasive pastes and powders whether or not containing soap fall under 34.05. Therefore, we have to examine as to whether the item is an abrasive paste and powder to come within the category of sub-heading 3405.40. 18. We have seen the explanatory note at page 520, which gives the items, which are not covered under heading 34.01. Heading 34.02 deals with organic surface-active agents (other than soap), to which the Revenue is inclined to classify the item. At page 522 of the explanatory notes items, which are not covered under heading 34.02, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us medium and frequently containing added colouring matter. (2) Metal polishes and polishes for glass consisting of very soft polishing materials such as chalk or kieselguhr in suspension in an emulsion of white spirit and liquid soap. (3) Metal, etc., polishing, finishing or fine-grinding products contain ing diamond powder or dust. (4) Scouring powders consisting of mixtures of very finely ground sand with sodium carbonate and soap. Scouring pastes are obtained by binding these powders with, for example, a solution of waxes in a lubricating mineral oil. These preparations, which are often put up for retail sale and are usually in the form of liquids, pastes, powders, tablets, sticks, etc., may be used for household or industrial purposes. The heading also covers paper, wadding, felt, non-wovens, cellular plastics or cellular rubber, impregnated, coated or covered with such preparations, but textile dusters and metal pot scourers similarly impregnated, coated or covered are excluded (Sections XI and XV respectively). The heading also excludes : (a) Abrasive powders, when not mixed (generally Chapter 25 or 28). (b) Whitening for footwear, in tablets, and prepar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redients, the appellant claim that the item in question cannot be used for washing the clothes or for use on human body, as it will have a serious effect both on human skin surface as well as on the clothes in view of the abrasive element contained in it, which irritates the human skin or tears out the clothes. It has to be used as scouring bars for scouring function, which abrades or scours to cleanse or brighten by friction. The cleaning or brightening property of the scouring preparation is attrib uted to the abrasive function of the abrasive agent present in that prepara tion. The department in the SCN has gone through the principle functions of the surface active agent to rule out the classification of the product under SH 3405.40 as claimed by the appellants by applying Interpretative Rule 3(b) Rules of Interpretation to the CETA, which rule lays down that when mixtures consisting of different material cannot be classified by reference to most specific description then they shall be classifiable as if they consist of the material or component which gives them their essential character in so far as this criterion is applicable. Therefore, the department proceeded to allege tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Note 2 to Chapter 34 which is also extracted supra which deals with the classification of the product under 34.01 and it applies only to soap soluble in water. Although the abrasive products remain classified in this heading but the note further states that scouring powders and similar preparations would fall under 34.05. Now, we are required to see as to whether the item is a scouring paste and powders and similar preparations classifiable under heading 3405.40 as claimed by the appel lants. 24. In this regard reference to Indian Standard Specifications for Scouring Powders under IS 6047 : 1970 is relied. The portion pertaining to Foreword in paras 0 1. to 0.3.3 is extracted herein below : INDIAN STANDARD SPECIFICATION FOR SCOURING POWDERS 0. FOREWORD 0.1 This Indian Standard was adopted by the Indian Standards Institution on 2 November 1970, after the draft finalized by the Soaps and Other Surface Active Agents Sectional Committee had been approved by the Chemical Division Council. 0.2 Scouring powders are formulations containing powdered mildly abrasive material along with a cleansing agent like soap, synthetic detergent, etc. These are used for cleansing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prescribed. Where IS Sieves are not available, other equiva lent sieves, as judged from aperture size, may be used. 0.5 For the purpose of deciding whether a particular requirement of this standard is complied with, the final value, observed or calculated, expressing the result of a test or analysis, shall be rounded off in accordance with IS : 2-1960. The number of significant places retained in the rounded off value should be the same as that of the specified value in this standard. On a reading of the above material, it is clear that it recognizes scouring powders are formulations containing powdered mildly abrasive material along with a cleansing agent like soap, synthetic detergent etc. These are used for cleansing of utensils, crockery, floors, washbasins etc. where cleans ing is effected by the combined action of scrubbing and detergency. In para 0.3.1. also the nature and definition of the product, scouring powders and ingredients have also been noted in the extracted portion above. This piece of evidence which clearly discloses that abrasive ingredients along with surface active agents are required for making scouring preparations for cleaning utensils, for scourin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pans, and mildness to surfaces. It also states that the modern trend is towards greater mildness but an abrasive also needs to be selected to meet the marketing requirements of the product in which it is to be used. It gives all the details about the factors and the minerals that are required to be selected At pages 434 and 435, the reason as to why such hardness for purpose of scouring and scrubbing dirt for dish washing hand is explained and certain amount of calcite and other insoluble salts, organic agents are also required for reaction purpose. 25. Appellants have also produced the write up of each of the minerals like calcite and other materials from technical book to show about their use as abrasive element for cleaning utensils. Appellants have also produced Indian Standard for Household Laundry Detergent Powders - Specification IS 4955 : 1993 which excludes abrasive use for scouring material. This clearly discloses that the items which are used in the manufacturing of household laundry detergent powders are to ensure safety from skin irrita tion and skin sensitization hazards to consumers using detergents as a requirement for compliance, with corresponding test methods. ..... 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