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TMI Blog2010 (3) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence that naphtha distillates cleared for motor vehicles. Findings of commissioner based on technical literature cannot be a substitute for evidence required to classify goods under sub-heading 2710.13. impugned item classifiable under sub-heading 2710.90 and benefit of notification available to naphtha distillates. - E/2571, 2570/2005, E/3423/2006 - A/110-120/2010-WZB/C-II/(EB) - Dated:- 25-3-2010 - S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) S/Shri J.C. Patel, Bharat Raichandani and R.D. Wagley, Advocates, for the Appellant. Dr. T. Tiju, SDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - In these cases, the main dispute relates to classification of industrial solvents, which are sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal filed by M/s. Aditya Petrochemicals, there is a classification dispute with regard to both final products (industrial solvents) and intermediate products (naphtha distillates). 2. The other assessees are aggrieved by the demands of duty raised on them in respect of naphtha distillates for the respective periods of dispute. One of them (M/s. Kothari Chemicals) pleaded non-excisability of the said item while others wanted the item to be classified under SH 2710.90 so as to claim the benefit of Notification No. 67/95-C.E. ibid, but the pleas were not accepted by the Commissioner. In the result, all were asked to pay duty on naphtha distillates generated during the course of manufacture of their final products. Other appellants ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be classified as Motor Spirit before its further classification under any sub-heading. It is further argued that the second condition relating to suitability use as fuel in spark ignition engines should necessarily be satisfied by way of adducing evidence of actual use of the goods as fuel in such engines. It is pointed out that, admittedly, the solvents manufactured by M/s. Aditya Petrochemicals were supplied to industries manufacturing paints, rubbers, plastics, pharmaceuticals etc. There is no evidence adduced by the department to show that the solvents cleared by the assessee were used by their buyers or others as fuel in spark ignition engines. In the circumstances, according to the learned Counsel, neither of the products can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are out of the purview of SH 2710.13, it must necessarily fall within the ambit of SH 2710.90 claimed by the assessee, in which event the demand of duty raised on them cannot be sustained. 6. Learned Counsel for the other assessees have adopted the above arguments advanced by the learned Counsel for M/s. Aditya Petrochemicals. 7. We have heard the learned SDR as well. He has reiterated the findings of the adjudicating authority in the above cases. He has also submitted that, as per technical literature on Petroleum products, it is possible to use naphtha distillates as motor spirit (Gasoline) by blending with suitable additives. It is also pointed out that naphtha is one of the potential adulterants for gasoline. In his submissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that adulteration of motor spirit was mainly done from the point of profitability, availability, blendability etc. and that, for this purpose, naphtha was considered as a material for adulteration. Yet another crucial finding found in the Commissioner's order is that "there is no need for any evidence regarding use of naphtha distillate as 'fuel' in spark ignition engines when the above literature is available and is sufficient to determine the classification." Learned Commissioner has observed that the literature does not indicate anywhere the 'non-suitability' of naphtha and other fuels for use in spark ignition engines. 9. We note that these findings of the learned Commissioner cannot hold good vis-à-vis the consistent view taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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