1998 (9) TMI 223 - AT - Central Excise

Summary

Issues Involved:
1. Classification of the product "Indrox-985-P-12" under the Central Excise Tariff Act, 1985.
2. Determination of whether the product is a synthetic organic product used as a fluorescent brightening agent or a residuary product of the chemical industry.
3. Evaluation of the Chemical Examiner's report and its implications on the classification.
4. Consideration of technical literature and HSN notes in determining the correct classification.

Issue-wise Detailed Analysis:

1. Classification of the Product "Indrox-985-P-12":
The primary issue is the classification of "Indrox-985-P-12," a dye penetrant used to detect cracks or flaws in metal surfaces. The Revenue classified the product under sub-heading 3204.30 as a 'Synthetic organic product of a kind used as fluorescent brightening agent,' while the assessee sought classification under sub-heading 3823.00 as a 'residuary product of the chemical industry not elsewhere specified or included.'

2. Determination of Product Type:
The product is obtained by mixing aromatic solvents, fluorescent dye, and corrosion inhibitor, and is undisputedly a synthetic organic product. It is used to detect cracks on metal surfaces through a process involving cleaning, applying the dye penetrant, and then a developer to make the cracks visible. The Chemical Examiner's report described the product as a fluorescent yellow liquid composed of complex organic compounds and mineral oil with less than 70% mineral oil content.

3. Evaluation of the Chemical Examiner's Report:
The Assistant Collector classified the item under sub-heading 3204.29 as a preparation based on dyes, but the Collector (Appeals) upheld the classification under sub-heading 3204.30, stating it is used as a fluorescent brightening agent. The appellants contended that the product becomes fluorescent only after the addition of a developer, but this was not supported by any material evidence. The Chemical Examiner's report, which was not challenged, indicated that the product is fluorescent as it is.

4. Consideration of Technical Literature and HSN Notes:
The Member (Technical) noted that the Collector (Appeals) concluded that cracks are visible due to the dye's fluorescence without technical evidence supporting this. The adjudicating authority cannot substitute its opinion for expert opinion. The product's classification should consider technical literature, the character of the item, and HSN notes. The Member (Technical) proposed remanding the matter for de novo examination.

Separate Judgments:

Judgment by Member (Judicial):
The Member (Judicial) upheld the classification under sub-heading 3204.30, rejecting the appeal. The decision was based on the Chemical Examiner's report, which indicated that the product is a fluorescent yellow liquid without requiring a developer.

Judgment by Member (Technical):
The Member (Technical) disagreed, highlighting the lack of technical evidence supporting the conclusion that the product's fluorescence detects cracks. The matter was proposed to be remanded for de novo examination considering technical literature and HSN notes.

Majority Order:
The majority opinion, including the third Member (Technical), agreed with the Member (Technical) that the matter should be remanded to the Commissioner of Central Excise for de novo examination. The appeal was allowed by way of remand, requiring a thorough review of the product's classification in light of technical literature, the character of the item, and HSN notes.