2012 (9) TMI 602 - AT - Central Excise

COSAVAT FERTIS-WG (Sulphar 90%) - classification under CETH 25030090 OR CETH 38241990 - Held that - the percentage of sulphur was brought down to 90% by adding other ingredients as in the case of the appellants. - The observations of Hon ble Supreme Court would clearly show that CETH 2503 has to be preferred to other headings. The classification claimed by the Revenue in this case under chapter 3824 cannot be accepted in view of the fact that the specific heading is to be preferred to general heading as held by Hon ble Supreme Court in M/s. Deepak Agro Solution Ltd Versus Commissioner of Customs, Maharashtra 2008 (5) TMI 8 - SUPREME COURT defining Salt and Sulphur are dealt with in Chapter 25 and sulphur may be used for different purposes including agricultural purposes. Brimstone 90 is used for agricultural purposes as would appear from the descriptions referred to hereinafter - in favour of assessee.

Summary

Issues:
1. Classification of the product manufactured by the appellant under Central Excise Tariff Act.
2. Whether the process undertaken by the appellant amounts to manufacture.
3. Applicability of chapter note 1 to chapter note 25 in determining the classification of the product.
4. Interpretation of chapter heading 2503 and sub heading 25030010 in relation to the product.

Analysis:
Issue 1: The appellant intended to change the classification of their product from fungicide to a fertilizer in powder form under CETH 25030090 with nil rate of duty. However, the Revenue contended that the product should be classified under CETH 38241990. The CRCL and Chief Chemist opined in favor of the Revenue's classification, leading to the imposition of differential duty and penalties on the appellant.

Issue 2: The appellant argued that their process of adding inert materials to reduce the sulfur percentage to 90% did not amount to manufacture. They claimed that the product facilitated sulfur absorption by plants and prevented particles from flying away, making it suitable as a fertilizer. The appellant relied on tribunal decisions and chapter notes to support their stance.

Issue 3: Both parties relied on chapter note 1 to chapter note 25 in their arguments. The Tribunal examined the applicability of these notes and highlighted that the context of the entries and the wording of the chapter headings were crucial in determining the classification. Reference was made to the Hon'ble Supreme Court's decision in a similar matter to support the interpretation of the chapter notes.

Issue 4: The Tribunal analyzed chapter heading 2503 and sub heading 25030010 to establish that sulfur of all kinds, except sublimed, precipitated, and colloidal sulfur, fell under this heading. The Tribunal referred to previous decisions and product details from other cases to support the classification under CETH 2503 over chapter 3824. It was concluded that the addition of inert chemicals did not alter the classification of sulfur.

In the final judgment, the Tribunal allowed the appeals in favor of the appellants, emphasizing that the classification of the product under CETH 2503 was to be preferred over chapter 3824. The decision was based on the interpretation of chapter notes, previous tribunal rulings, and the Hon'ble Supreme Court's guidance on classification issues.