TMI Blog2005 (11) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... leting the sub heading 2505.10 was not to classify the calcined china clay out of Heading 25.05. HSN Heading 25.07 specially covers kaolin and other kaolinic clays, whether or not calcined. In fact the relevant portion of the sub-heading 2505.10 of the tariff as it stood after enactment of Finance Act, 1990 and before enactment of Finance Act, 1995 was pari materia with Heading 25.07 of HSN. Thus, the calcined china clay will fall under Heading 25.05 of Central Excise Tariff attracting nil rate of duty being the tariff rate applicable to that If heading. Note 2 to chapter 25, no doubt, indicates that the Heading 25.05 does not apply to products that have been calcined. However chapter note begins with the expression except where the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Therefore as arrived imposition of penalty cannot be upheld. The order is therefore set aside appeal allowed. - HON'BLE ARCHANA WADHWA (J) AND S.S. SEKHON (T), MEMBERS For the Appellant : Prakash Shah, Adv. For the Respondent : U.H. Jadhav, JDR ORDER S.S. Sekhon, Member (T) 1.1 Heard both sides. The dispute in the present appeal involves, inter alia, the correct classification of 'Calcined China Clay'. The appellants sought to classify the said Calcined China Clay in the declaration filed by them under chapter Heading 26.06. The Appellants during the course of adjudication proceedings alternatively claimed classification of the said Calcined China Clay under chapter Heading 25.05. By the impugned order, the respondent has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products winch have been roasted, calcined or obtained by mixing. It is therefore, clear that the Heading 25.05 cannot over calcine products. 2.4 I However, prior to the enactment of Finance Act, 1990, the Heading 25.05 did not have any sub headings under it. The Finance Act, 1990 introduced sub headings 2505.10, 2505.20, 2505.30 2505.40, 2505.50, 2505.60, 2505.70 2505.90 under Heading 25.05. These subheadings remained till the enactment of the Finance Act, 1995. 2.5 By the said Finance Act, 1990, Note 2 to Chapter 25 as it stood immediately prior thereto was substituted as follows. Except where their context otherwise requires, Heading Nos. 25.01, 25.03 25.05 covers only products which have been washed (even with chemical substances elimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, is a legislative recognition of the position that calcined China clay is indeed a product covered by the description, mineral substances not elsewhere specified appearing in main Heading 25.05. 2.9 If this is the position during the period 1990 to 1995, the position could be no different when the tariff did not have any sub headings under Heading 25.05 after the enactment of Finance Act, 1995, or during the period prior to enactment of Finance Act, 1990. During this period the undisputed position would be that the calcined China clay is indeed covered by the description, mineral substances not elsewhere specified of Heading 25.05. 3.1 Till 16-3-1995, Notification No. 7/92, dtd 1-3-92 as amended exempted all goods falling under heading or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are kaolin minerals such as kaolinite, dickite and nacrite, anauxite and hallosyteendellite. Such clays remain in the heading even when calcined. Kaolin, also known as China clay, is a high grade, white or nearly white clay used in the porcelain and paper making industries. Kaolin bearing sands are excluded (Heading 25.05). In view of the above, the calcined China clay will fall under Heading 25.05 of Central Excise Tariff attracting nil rate of duty being the tariff rate applicable to that If heading. 3.4 Note 2 to chapter 25, no doubt, indicates that the Heading 25.05 does not apply to products that have been calcined. However chapter note begins with the expression except where the context otherwise requires this expression was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and only declared the China clay has to be upheld . limitation bar is to be applied. 3.7 It is submitted that the declaration dtd 4th June, 1998 at page 85 of the appeal, would show that the appellants had declared three varieties of China clay viz (1) Lavigated China Clay, (2) Refined China clay and (3) calcined China clay. On page 93 of the appeal, in the said declaration, the appellants had specifically declared the manufacturing process of the calcined China clay. It therefore, not correct, to hold that the appellants did not declare the calcined China clay. The larger period is not available to invoke the demand. 3.8 In any event, the issue involved in the present appeal relates to the classification of calcined China clay and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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