TMI Blog2008 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.60 % and, the moisture content was 0.30 %. 3. "Brimstone 90" was classified under the Customs Tariff heading 25.03 by the Customs, Excise and Service Tax Appellate Tribunal in the case of Deepak Fertilsers Petrochmeicals Corporation Ltd. vs. Commissioner of Customs, Nhava Sheva : 2002 (139) E.L.T. 328. The Tribunal held :- "8. Elemental sulphur has vide use as a fertiliser. Elemental sulphur has to be oxidised to sulphate before it can be absorbed by the plant. The rate of oxidisation depends upon the surface area of the sulphur particles. Rapid oxidisation is possible where the particle size is small. The fine particles, however, create handling problems. They can also be blown away by wind. They may float on the irritation to the eyes and lungs. They can also be blown away by wind. They may float on the irrigation water. To enable the sulphur to be applied in a safe manner it is mixed with other fertilisers such as phosphate, etc., or with inert fillers such as bentonite clay. Such mixture is applied to the plants. On application of water bentonite expands and disintegrates the sulphur particles surrounding it. Over the years 10% bentonite in the mixture has been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be approved. The order of lower authorities also did not bring out very clearly how this packaging is considered by them to be fit for retail sale. We would consider the Heading 3825 to be more appropriate after considering the Heading and Chapter Notes on Fertiliser. However, as in the appellants' own case, the sulphur imported was classified under Chapter 23 we would request the President to constitute a Larger Bench to determine the question of classification of the entity herein since the decision in appellants' own case is by a coordinate Bench of two members. The question referred to this case would be classifiable under Chapter 2503 as per importers or under Heading 3808 by Revenue or under 3825 as a product of Chemical Industries as viewed hereinabove." The Larger Bench of the Tribunal, however, by its order dated 27th January, 2006 came to the conclusion that the said goods were classifiable under "Heading 3808.19 (sic) 3808.90". 8. Mr. A.R. Madhav Rao, learned counsel appearing on behalf of the appellant would submit that the Larger Bench of the Tribunal in arriving at the impugned judgment failed and/or neglected to consider not only the manufacturing process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 25, whereupon reliance has been placed by the Tribunal, reads as under :- "1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or which have been washed even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products that have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading." 12. Entry 2503 speaks of Sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and colloidal sulphur. Entry 2503 00 10 read as under : "Sulphur recovered as by-product in refining of crude oil". 13. Heading 3808 deals with insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur - treated bands, wicks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating process undertaken for the purpose of transportation of Sulfur and better used in the agricultural processes. How this process is employed in the agricultural operation would appear from the "Journal Fertilizer Focus, April 1977" issue in the following terms :- "Brimstone 90 The Technology The Brimstone 90 plant that entered service in Saudi Arabia for NEAIS is based on Sandvik process system well known Rotoform system. According to Sandvik by consistent incorporation 8-10 % of bentonite in the Sulphur, the release qualities of the Sulphur in the soil are improved. In addition, this process, produces consistently sized granules with low flexibility and low dust content that are free flowing and easy to handle in storage and application" 22. Manufacturing process of Brimstone 90 would appear from Physical and Chemical Analysis report dated 11th August, 2003 issued by the National Est. for Agricultural and Industrial Sulphur, Dammam in the following terms :- "Manufacturing Process of Brimstone 90 We are submitted herewith the brief manufacturing process of Brimstone 90 received from our principals National Establishment for Agricultural and Industrial Sulphur. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-notes to the tariff entry on the HSN prescribe the scope of the goods falling thereunder, the relevant part whereof is reproduced hereto below:- "(4). Unrefined sulphurs recovered as by-products in the purification of coal gas by the scrubbing of sulphurous furnace gases, from sour, natural gas and from the refining of sour crude miner oils, etc. These recovered sulphurs, sometimes referred to as "purified sulphur" or precipitated sulphur", must not be confused with the precipitated sulphur desired in the Explanatory Notes to heading 28.02" 29. Keeping in view the aforementioned background, we may have an analytical look at tariff entry No. 2808. It principally deals with insecticides, fungicides, herbicides etc. The same is to be put up in forms or packings for retail sale or as preparations of articles. What has been stated by way of example is sulphur treated bands, wicks, candles and fly-papers and not Sulphur itself. Sulphur treated bands etc. would be different from crude Sulphur or Brimstone 90. 30. The question which, therefore, should have been posed by the Tribunal while differing with the correctness of its earlier decision was as to whether the product is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fur" or "precipitated sulfur". Must not be confused with the precipitated sulfur dined in the Explanatory Note to heading 28.02 The unrefined sulfurs in the last three paragraphs are sometimes fairly pure. This is especially true of the sulfur produced by the Frasch process which contains such small proportions of impurities that it is practically never refined; it is usually presented in rough lumps or as dust. (5) Refined sulfur, obtained by rapidly distilling crude sulfur and condensing it in the liquid state; sulfur thus obtained can then be moulded into sticks or cakes, or crushed after solidification. (6) Triturated sulfur, which is sulfur (impure or refined) in the form of a finely divided powder obtained by grinding and then sieving, either mechanically or by the gas suction. These products are known as "sieved sulfur", Winnowed sulfur", "automized sulfur", etc., according to the process employed and the fineness of the parties. (7) Sulfur, obtained by the sudden cooling of sulfur vapours without passing through the liquid phase, which is insoluble, particularly in carbon disulphide (sulfur u). The various types of sulfur classified in this heading are used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is specific heading for Residue of chemical and allied industries under the present chapter Heading 38.24. Since there is specific heading, we need not go to decide the issue by resorting to be Rules for interpretation of tariff. These Rules are attracted only when the heading is not specific or the product is a composite one." The said finding of the Tribunal was held to be not correct by this Court stating that "Denatured Salt" is specifically included in Chapter Heading No. 25.01. 39. In regard to Chapter Note 1 of Chapter 25 in HSN, this Court observed :- "Apart from this, similar chapter notes also appears in Chapter No. 1 of Chapter 25 in HSN which clearly provides that residuary Sodium Chloride left after chemical processing is covered by Heading No. 25.01. Chapter note 2 does not provide anywhere that in order to be covered by Heading No. 25.01 the product must not contain impurities. The bracketed portion in Chapter note 2 is being totally misread by the Revenue. The only effect of the bracketed portion is that if the goods in question are washed, such wash may be even with chemical substances eliminating the impurities without changing the structure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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