TMI Blog2019 (3) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... to Chapter 27 would also become otiose. Moreover, it is seen that prior to 01.03.2005 the Special Boiling Point Spirits were a - - entry immediately preceded by a - entry related to Motor Spirit . So prior to 1.3.2005 the SBPS were a sub classification of motor spirits even by revenue s interpretation. Thus the interpretation of revenue would result in no item falling under under the category of motor spirit and the definition of the term motor spirit , and the - - - entry relating to it, would become otiose for the period after 1.3.2005. Any interpretation that makes the specific entry, motor spirit and its definition appearing in supplementary notes, otiose, cannot be the correct interpretation. In above circumstances, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ONGC was decided by Tribunal vide Final Order No. A/12626-12630/2018 dated 26.11.2018. He argued that for a product to qualify as SBPS falling under heading 2710 11 11, 2710 11 12, 2710 11 13, the product must also conform to the definition of Motor Spirit appearing in the Central Excise Tariff. Ld. Counsel also relied on the decision of the Tribunal in their own case reported as 2019 (1) TMI 174 (CES-AMD) dated 02.01.2019. In the said case the Tribunal observed as follows: 5. We have gone through rival submissions. We find that Revenue is seeking to classify the product as motor spirit under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005). Prior to 01.03.2005 heading 2710 read as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he departmental sample no doubt showed fulfilment of the flash point criterion. But, in a stoutly disputed case such as the present one, it was imperative on the part of the department to test the mineral oil also to determine whether it fulfilled the criterion of suitability for use as fuel in internal combustion engines. This, the department failed to do even though it was seeking to tax the oil as motor spirit. (emphasis supplied) Thus to qualify as motor spirit the product has to answer to the two test prescribed in the aforesaid decision. In case of Oil India Limited 2002 (148) ELT 802 in para 8 following has been observed: 8. In view of the Board s clarification dated 17-11-81 the Revenue cannot take up a contention t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent is in respect to subsequent query of the appellant seeking this information. In this background, it is seen that the product has not been tested for its suitability for use in admixture with any substance other than mineral oil as required in terms of the decision of Tribunal in case of Oil India Ltd., upheld by Hon ble Apex Court (supra). Thus Revenue has not produced the necessary evidence to classify the product as motor spirit falling under heading 2710.99 (prior to 31.03.2005) and under tariff Heading 2710 19 90 (after 31.03.2005). In these circumstances demand of duty and change of classification sought by Revenue remains unsubstantiated. Consequently, the demand is set aside and appeal of M/s Gail India Ltd. are allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Ces-MUM) 4.2 However, the argument regarding general explanatory notes raised by Revenue is not specifically dealt with in aforesaid decisions. Revenue has argued that in terms of the General Explanatory Note to the Central Excise Tariff, the - - - - entries in the tariff are not sub classifications of - - - entry immediately preceding it. The General Explanatory Note to the Central Excise Tariff reads as follows: Revenue has argued that the headings preceded by four dashes - - - - shall be taken as sub classification of immediately preceding - and - - entry and not the - - - entry preceding it. The issue needs to be examined for two different periods in this regard as the tariff heading had changed in the year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto two - - entries, one numbered as 2710 11, namely Light Diesel Oils and Preparations and the other numbered as 2710 19, namely Others . The - - entry 2710 11 Light Oils and Preparations is sub divided into three - - - entry, namely Motor Spirit (without any sub heading), National Gas and Liquid (NGL) heading 2710 11 20 and others heading 2710 11 90. The - - - entry Motor Spirit is followed by - - - - entries namely, 2710 11 11, 2710 11 12, 2710 11 13 and related to SBPS and heading 2710 11 19 relating to Others . 4.3.3 Similarly the - - entry relating to sub heading 2710 19 is further divided into nine sub headings numbered as 2710 19 10 (SKO), 2710 19 20 (ATF), 2710 19 30 (HSD), 2710 19 40 (LDO) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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