TMI Blog2023 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... with similar imports of item which were claimed to be Low White Spirit has thoroughly analysed various parameters, the statutory notes as well as findings of the CRCL on various parameters, and more particularly Chapter Note 4 of Chapter 27, which indicates that to be included in Sub Heading 271012, as low white oil in the matter, atleast 90% or more by volume should distil at 210 according to ISO. In the instant case also, we find that as per the reports available 95% of volume is recovered at approximately 184 , and final boiling point is maximum was 202.4 in one case and 196.2 in another case which was not as per the requirement approved of by the Apex Court of 90% distilled taking place at 210 degree Celsius as per statutory note and as per the decision of M/S KRISHNA TECHNOCHEM PVT. LTD., SHRI BINDHYACHAL SINGH VERSUS COMMR. OF CENTRAL EXICSE, HALDIA [ 2019 (9) TMI 1523 - CESTAT KOLKATA] . There are no merits in the impugned order - appeal allowed. - HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU HON'BLE MEMBER ( JUDICIAL ) , MR. SOMESH ARORA Shri Sudhir Mehta , Advocate for the Appellant Shri. Himanshu P Shrimali , Superintendent ( Authorized Representative ) for the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eum Hydrocarbon solvents (145/205) as per IS:1745. The actual end use of the sample may be ascertained at your end. Sealed remnant sample returned herewith. 2.2 Not satisfied with the lab test reports the appellant requested to allow them to re-test of samples from another referral or govt laboratory, which was granted to the appellant and accordingly 02 duplicate samples were forwarded to the CRCL, New Delhi. The CRCL, New Delhi gave its test report vide CLR No. 157 158 dated 21.01.2022 as under: No Characteristics Requirements for Petroleum Hydrocarbon Solvents(145/205) as per IS: 1745:2018 Test Results CLR-157 BE NO. 5921646 dated 20.10.2021 Test Results CLR-158 BE No. 5921650 dated 20.10.2021 Acidity - Nil Nil Ash (% by wt.) - Nil Nil Colour (Soybolt) +20 +31 +31 Density at 15 % C (Kg/M) To be reported 780.5 780.2 Flash point (abel) in degree C 35/38 39/38 39/38 Aromatic content,% by vol, Max 40 7.55 7.60 Copper strip corrosion for 3h at 50 degree C Not worse than no. 1 1a 1a Water content - Nil Nil Distillation Initial boiling point degree C 145 156.9 156.9 50% by vol recovered at, in degree C To be reported 16738/ 177 167.8 95% by vol recovered at, in degree C To be reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Preparations 6. In the test report for the purpose of ITC classification 271012 relevant markers of solvent 60/80, solvent 50/120 and solvent 145/205 such as (i) colour, (ii) residue, (iii) whether 90% or more by volume including losses distilled at 210 degree celcious according IS 3045 method were not satisfied. 7. Distillation test is used for determining the full range of volatility characteristics of a hydrocarbon liquid by progressively boiling off (evaporating) a sample under controlled heating. Initial boiling point (IBP) is the fluid temperature at which the first drop falls into a graduated cylinder after being condensed in a condenser connected to a distillation flask. Mid-boiling point (MBP) is the temperature at which 50% of the fluid has collected in the cylinder. Dry point is the temperature at which the last drop of fluid disappears from the bottom of the distillation flask. Final boiling point (FBP) is the highest temperature observed Front-end volatility and tail-end volatility are the amounts of test sample that evaporate, respectively, at the low and high temperature ranges. If the boiling range is small, the fluid is said to be narrow cut, that is, having co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant marker as it is the only marker which decide the rate of evaporation which in turn decide quality / impurities and uses. This relevant marker were not tested on the goods in spite of the requisitions of the test report. The CTH 271012 can not be proposed in absence of this data. In the assessment the purity of solvent specific test are used to determine the contents of selected component. The residue after evaporation is defined as the percentage by weight of material remaining after evaporation of a volatile and heating of the disk and residue at 105 degree for 30 minutes as per ASTM standard which is being adopted under the IS standard. No case of residue test is done to show that the solvent could fall under CTH 271012. The evaluation of sample from the test of the liquid pure organic solvent and their mixture are very important and their importance is such which is one of the important marker for evaluation of a evaporating solvent. A report from Food Science and Applied Biotechnology (E-ISS 2603- 3380 (Journal 2020, 3 (1) 7-84) is enclosed in this regard and marked D (Pages 61 to 68 of Compilation). 11. The distillation range required is 145/ 205 which is to be reckoned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent 150/300 which is freely importable. 1 All these 3 solvents such as 90/135, 125/240, 150/300 which are freely importable would also be covered by the flash point criteria. Flash point of dry wood is 250- 300, to say that it qualifies flash point criteria of jet fuel would be apparently wrong. The application of test results are not done in the manner indicated in the IS Standard. 13. The aromatic content of 20 would also fall within 125/ 240, 150/300 where is Specification says maximum 40 for 145/ 240. P: 23 and P: 48 prescribes procedure of application of aromatic content which has not been followed. 14. The basic relevant markers such as colour, evaporation rate, residue are not bright forward and result of 95% recovery at 210. Few common results applicable to all hydrocarbon substances are put forward which are not sufficient to challenge the classification declared and self assessed by us. No case has been put for claiming the tariff entry 271012. 15. The law in this regard is being settled by the judgement of the Hon'ble Supreme Court in India in HPL Chemicals LTD. - Vs Commissioner reported in 197 ELT page 324 (SC) and Hindustan Ferodo -Vs- Collector reported in 89 EL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt with and the appellant relies upon paragraph 22, 24, 25 of the said judgement. 19. The Tribunal at Ahmedabad in the Swarna Oil Services - Vs- Commissioner of Customs, Mundra in Customs Appeal No. 12496 of 2019 (Pages 147 to 154 of Compilation) has held that if the IS standard is not met in that case the claim of the classification of the department will not be tenable. A copy of the judgement of Swarna Oil Services is annexed hereto and marked as Annexure N . The judgement is delivered by Hon'ble Mr. Ramesh Nair as Member Judicial and Hon'ble Mr. Raju as Member Technical. So, In own case for important at Kolkata Port, the Principal (Kolkata) held that all critical including one in wrote would be reported to be met for containing the goods and light oil and preparation. 20. Inasmuch as in the subject case the department has failed to bring any cogent material to challenge the classification claimed by the appellant and only those general characteristics of solvent are tested which do not determine the grade of a solvent. 4. They thus relied upon decision in their own matter delivered as Final order No. 75776 dated 22/06/2023, by the Calcutta Bench also on the decision on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned AR was of M/s. Selvam Industries Ltd as reported in 2021 (377) ELT 458 (Tri.- Chennai). 6. Considered the rival submissions. We have gone through various case law produced by the Learned AR, in which there was no serious challenge to the classification made by the department. All the decisions indicated by the AR as above deal with other aspects and confirm confiscation consequent upon such change as per ITC policy, which will be surely the outcome, but only if department succeeds on its classification. 6.1 As against this, we find that appellant has seriously challenged the report of CRCL, and not only has it backed up its proposition of goods being as per its classification with various technical literature, only which are a part of paper book, but has done so on the basis of various material mentioned in the findings of the CRCL to indicate that impugned products are devoid of getting fitted into the requirement of statutory notes, under Tariff Heading 271012. We find in particular, it has relied upon the decision of the coordinate Bench of Calcutta High Court in their own matter i.e M/s. Kunjal Synergies Pvt Ltd (Kolkata) decided vide Final Order No. 75776-75777/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpare the results of the Test Report for the impugned goods with that of the standard requirements for the solvent 145/205 as per IS 1745/2018. A Comparative Chart of the Test Report dated 13.01.2021 alongwith requirements for Petroleum Hydrocarbon Solvent 145/205 as per IS 1745/2018 is furnished below : Lab No./Mark g Density 15 C gm/cc Flash Point (COC) Acidy Ash Content Water Content Aniline point IBP FBP Aromatic content by vol. As per the test repo issued by CRC Kolkata 3829/A 0.7838 48 Nil Nil Nil 58C 162C 194C 21 3830/B 0.7838 48 Nil Nil Nil 58C 162C 194C 21 Requirements f solvent 145/205 per the IS 1745/20 35 145C 205C 45 14. From the above comparative chart, it is to be examined whether the impugned goods can be classified as Solvent 145/205 under CTH 27101239. As per the Test Report details furnished above, the IBP of the impugned goods is 162 degree Celsius and FBP is 194 degree Celsius, whereas as per the IS standard 1745 the minimum IFB should be 145 degree Celsius (IBP) and maximum FBP should be 205 degree Celsius respectively. The Appellant stated that the IFB 162 of the impugned goods is much higher than the minimum IFB requirement of 145 as per the IS 1745 standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied) 2. We have heard Mr. Balbir Singh, Learned ASG appearing on behalf of the appellant. We have gone through the impugned judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, (for short the Tribunal ) more particularly, the reasoning given in para 8. We have also considered the sub-heading notes and as per the said sub-heading notes, for the purposes of subheading 2710-12, Light Oils and Preparations are those of which 90% or more by valume (including losses) distilled at 210 degree Celsius. 3. In the present case, even as per the Chemical Examiner s Report, the range of distillation of the product in question was between 35 degree to 58 degree Celsius which is much below 210 degree Celsius and the word used in sub-heading notes referred to herein above is at and not up to . Therefore, we see no reason to interfere with the impugned order(s) passed by the Tribunal. 4. The present appeals are, accordingly, dismissed. 16. In view of the above decision, the Appellant stated that when the Test Reports differs from the standards prescribed, the goods cannot be held to satisfy the requirements under IS 1745 standards meant for CTH 2710. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding that the goods were not classifiable under CTH 27101239. The Appellant stated that after rejecting the classification under CTH 27101239, the Commissioner (Appeals) should have classified the said goods under CTH 27101990, which is the only residuary entry available for classification of the said goods. Further they contended that remanding the matter for assessment in respect of the said six Bills of Entry by the Commissioner (Appeals) is bad in law. Regarding the remaining four Bills of Entry where goods were assessed and Ex-Bond Bills of Entry were filed, the Appellant contended that the goods should not have been seized/ confiscated since out of charge orders have been issued in respect of these goods. 20. We find merit in the arguments of the Appellant. In the impugned order, the Commissioner (Appeals) has rejected the Classification of the goods under CTH 27101239. When the goods do not satisfy the criteria fixed under Note 4 of Chapter 27, the goods cannot be classified under CTH 27101239. The remaining option available in the Tariff is to classify the same under CTH 27101990 which is the only residuary entry available for classification. Regarding the remaining 4 Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
