9911796707
TMI Blog2008 (7) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Act as claimed by them or under Heading 34.03 of the said Schedule as claimed by the appellant. In their declaration filed under the erstwhile Rule 173B, the respondents classified the item under SH 3402.10 as 'Sulphonated Fish Oil' attracting NIL rate of duty. The Department issued a show-cause notice proposing to classify it under SH 3403.90 as a fat liquor and accordingly to demand duty of excise. The proposal was contested by the party. In adjudication of the dispute, the Assistant Commissioner of Central Excise classified the product and demanded duty for the aforesaid period as proposed in the show-cause notice. Aggrieved, the party preferred an appeal to the Commissioner (Appeals) and the latter allowed the same by setting aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also pointed out that the respondents' trade pamphlet itself described 'Poleyol F.S.O.' as a fat liquor. In this connection, the appellant has relied on the Tribunal's decision in General Electric Co. v. Collector - 1986 (26) E.L.T. 620 (T) and the Bombay High Court's judgment in Kulkarni Black & Decker v. Union of India - 1992 (57) E.L.T. 401 (Bom.), wherein it was held that pamphlets/advertisements issued by the manufacturer would be taken into account as one of the factors relevant to classification. The appellant has also relied on Hawley's Condensed Chemical Dictionary. Reliance has also been placed on the Supreme Court's judgment in Atul Glass Industries v. Collector - 1986 (25) E.L.T. 473 (S.C.), wherein it was held that class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ynes/Cm. The presence of free fish oil could not established in each. The percentage of sulphated oil content is 81.6 and 35.7 respectively". The above test report, accepted by both sides, indicates that 'Poleyol FSO' answers the test for organic surface-active agents (other than soap) laid down under Note 3 to Chapter 34 of the CETA Schedule, which reads as follows :- "3. For the purposes of heading No. 34.02, 'organic surface-active agents' are products which when mixed with water at a concentration of 0.5 per cent at 20°C and left to stand for one hour at the same temperature : (a) Give a transparent or translucent liquid or stable emulsion without separation of insoluble matter; and (b) Reduce the surface tension of water to 4.5 x 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... micals". According to the above Note, a preparation for lubricating, oiling or greasing leather, hides, etc. is seemingly a mixture of surface-active agent and a mineral oil or fatty substance. But what was found by the Chemical Examiner on chemical analysis in terms of Note 3 to Chapter 34 was an organic surface-active agent (other than soap) capable of reducing the surface tension of distilled water to below 45 dynes/cm. According to the HSN Explanatory Notes to Heading 34.02, organic surface-active agents are chemical compounds (though not chemically defined) and not mixtures. For classification of any goods under Heading 34.03 as a "preparation of a kind used for the oil or grease treatment of leather etc.", it should be an organic sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34.02) which says that preparations containing surface-active agents where the surface active function is not required or is only subsidiary to the main function of the preparation are not covered by Heading 34.02. According to this Note, if the main function of such preparation is one specified under Heading 34.03, the preparation would fall under that Heading. The Revenue is yet to establish that the surface- active function of 'Poleyol FSO' is either not required or is only subsidiary to fat liquoring, which is said to be the main function of the product. According to the Condensed Chemical Dictionary, fat liquoring is the process of replacing natural oil in hides by tanning operations. The appellant has not adduced evidence in support o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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