TMI Blog2018 (10) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in case of Pesticide MFG. Formulators Association of India - Appeal dismissed. - Appeal No. C/10879/2016-DB - A/12147/2018 - Dated:- 11-10-2018 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) For Appellant: Shri Saurabh Dixit (Advocate) For Respondent: Shri Sameer Chitkara (A.R.) ORDER Per: Raju 1. This appeal has been filed by M/s E I Dupont India Pvt. Ltd against demand of custom duty on the import of Rynaxypyr Tech which consist of compound namely Chlorantraniliprole (approx 93%) by change in classification claimed by the appellant under chapter heading 2933 39 90 to chapter heading 380891, by Revenue. 2. Ld. Counsel for the appellant pointed out that they had imported Rynaxypyr Tech which is essentially compound namely Chlorantraniliprole. The said compound is insecticide as per the Insecticide Act. However, in the Customs Tariff the same need to be classified as Organic chemicals falling under chapter heading 2933 39 90 as the same is essentially covered by the falling under that heading. He particularly relied on the decision of Tribunal in the case of M/s shakti Chemicals 2017 (357) ELT 522 (Tri.Mum) and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pesticide under reference is covered under Schedule to Insecticide Act, 1968 1.1.4 It is not a preparation is a Technical Pesticide containing 93% purity. As per guideline of Registration, the product is registered for 93% minimum purity, in India. 1.1.5 The product chlorantraniliprole falls under Section 3 (e) , sub Section i and ii of the Insecticide Act, 1968 (Copy enclosed) 4. Ld. Counsel argued that apart from this opinion of joint director, there are other reports which have been all considered in the order in original and thereafter, the order in original concludes that the product imported is not a preparation but it is Chlorantraniliprole compound with Nitrogen and hydrogen items only. In this regard report was obtaining from institution of Pesticide Formulation Technology dated 29.04.2014 wherein following has been stated: Test Method used: LC-MS/MS S.NO Test Quarry Results 1 2 Whether the sample confirm to the describtion Rynaxypyr Tech OR NOT WHETHER the item is an organic chemical of the type specified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssified in Chapter 29, may be excluded when put up in certain forms, or if they have been subjected to certain treatments which leave their chemical composition unchanged, Examples are: (h) Disinfectants, insecticides, etc, put up as described in heading 38.08. 6.1) He pointed out that the explanatory notes also support his argument that only the products which are put up as described in heading 38.08 would be classifiable under chapter 38. 7. Ld. Counsel also relied on the decision of Hon ble Apex Court in case of Polyglass Acrylic Mfg. Co. Ltd. Vs. CC, Vishakhapatnam 2003 (153) ELT 276 (SC) wherein it has held that the report of export cannot be simply passed aside. He also relied on the decision of Hon ble Apex Court in case of Reliance Cellulose Products Ltd. Vs. Collector of C.Ex, Hyderabad 1997 (93) ELT 646 (SC) wherein it has held that opinion of Chief Chemist and Chief Examiner of the Government cannot be lightly pressed aside on the basis of opinion on same private obtained by the appellant. He also relied on the decision of Sunint Auto Pvt. Ltd Vs CC, New Delhi 2005 (183) ELT 209 (Tri.Del) wherein it has held that export opinion cannot be described on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of heading 2940, or the products of heading 2941, whether or not chemically defined; (d) the products mentioned in (a), (b) or (c) above dissolved in water; d) the products mentioned in (a), (b) or (c) above dissolved in other solvents provided that the solution constitutes a normal and necessary method of putting up these products adopted solely for reasons of safety or for transport and that the solvent does not render the product particularly suitable for specific use rather than for general use; e) the products mentioned in (a), (b), (c), (d) or (e) above with an added stabiliser (including an anti-caking agent) necessary for their preservation or transport; f) the products mentioned in (a), (b), (c), (d), (e) or (f) above with an added anti-dusting agent or a colouring or odoriferous substance added to facilitate their identification or for safety reasons, provided that the additions do not render the product particularly suitable for specific use rather than for general use; (h) the following products, diluted to standard strengths, for the production of azo dye: diazonium salts, couplers used for these salts and diazotisable amines and their salts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ----- (e) -------------------- (f) -------------------- (g) --------------------- (h) ---------------------- The HSN for the chapter 38 contains following: HSN- Chapter 38 Miscellaneous Chemical Products Notes: 1. This Chapter does not cover: (a) Separate chemically defined elements or compounds with the exception of the following: 1) -------------------- 2) Insecticides, rodenticides, fungicides, herbicides, anti-spouting products and plant growth regulators, disinfectants and similar products, put up as described in heading 3808; GENERAL 38.08- Insecticides, rodenticides, fungicides, herbicides, anti-spouting products and plant growth regulators, disinfectants and similar products, put up in forms of packing for retail sale or as preparations or articles (for example, sulphur-treated bands, wicks and candles and fly-papers) (+). 11. The impugned order essentially relies on the decision of Hon ble Apex Court in the case of Union of India Vs. Pesticides MFG. Formulators Association of India 2002 (146) ELT 19 (SC). It is seen that the decision of Hon ble Apex Court in the said case was given w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instance case. An examination of the decision of Hon ble Apex Court shows that the Apex Court has considered the Central Excise Tariff and the HSN notes relating to the said tariff entries. The said notes of Central Excise Tariff and Customs Tariff are identical except from chapter note 2 relating to concept of deemed manufacture. The Hon ble Apex Court has examined all aspect before coming to the decision. It is seen that Hon ble Apex Court has examined the rules of interpretation, the chapter notes chapter heading and HSN notes in the said case as under: 15. There is also substance in the submission of learned counsel for the respondent that classification of TGP, insecticides etc. in bulk form under Tariff Heading 38.08 would be in keeping with the Rules for interpretation of the Schedule to the 1985 Act. The Rules in so far as they are relevant provide: 2(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ITC (HS) Classification of Export and Import items, 2002-2007 which was issued by the Government under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with paragraph 2.1 of the Export and Import Policy, 2002-2007. The ITC (HS) like the Schedule to the 1985 Act, also contains several chapters which correspond exactly with the Schedule to the 1985 Act at least as far as the relevant parts of Chapter 38 are concerned. Chapter Note 1(a)(2) and the Heading 38.08 of the ITC (HS) are identical with the Schedule to the 1985 Act. In the ITC (HS), under the several sub-headings to Heading 38.08, the different forms of insecticides, pesticides etc. have been provided for from which it is clear that insecticides etc. in their concentrated bulk forms are covered by the Heading 38.08 at least for the purposes of the Import/Export Policy. For example, sub-heading 3808.10.11 mentions Aldrin‟ as a form of insecticide. Against that sub-heading, it is provided that it is freely importable/exportable if registered and not prohibited for import under Insecticides Act, 1968 and formulations thereof . Similarly, 3808.90.10 provides for pesticides, not elsewhere s ..... 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