9911796707
TMI Blog1999 (4) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ification list. In the classification list, the appellant claimed the classification of aluminium phosphide and zinc phosphide under Chapter sub-heading 3808.10 of the Central Excise Tariff in respect of phosphorous pentasulphide claimed classification under Chapter Heading 2813.00 and claimed the benefit of Notification No. 43/88, dated 1-3-1988. A show cause notice was issued to the appellant stating therein that the aluminium phosphide and zinc phosphite is classifiable under sub-heading 3808.90 of the Central Excise Tariff. It is also alleged in the show cause notice that phosphorous pentasulphide is not entitled for the benefit of Notification No. 43/88 as it is being used for the manufacture of goods falling under sub-heading 3808.90. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enging the impugned order in respect of classification of zinc phosphide and also claimed the benefit of Notification No. 43/88 in respect of phosphorous pentasulphide. 9. Ld. JDR appearing on behalf of the revenue submits that the tariff sub-heading 3808.10 describes insecticides, fungicides, herbicides, weedicides and pesticides. He submits that the respondents are manufacturing aluminium phosphide which is a chemical used to kill rats. He submits that the tariff entry 3808.90 covers other rodenticides. He submits that the product, in question, is neither the insecticides nor a fungicides, herbicides or weedicides or pesticides. Therefore, it does not fall under the entry 3808.10 of the Central Excise Tariff. He submits that the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured by the respondents, which are well-known chemicals used to kill rats, which are pests, therefore, the product, aluminium phosphide and zinc phosphide are classifiable under Central Excise Tariff Heading 3808.10. He, further, submits that phosphorous pentasulphide is being used in the manufacture of aluminium phosphide and zinc phosphide which are classifiable under Heading 3808.10 of the Central Excise Tariff and, therefore, is entitled for the benefit of Notification No. 43/88. He, therefore, prays that the appeal filed by the Revenue be dismissed and the cross-objections filed by the respondents be allowed. 11. Heard both sides. 12. In this case, the issue is in respect of classification of the product aluminium phosphide and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esticide Control Act, the term pesticide has been defined to include (1) any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, insect, rodent, nematode, fungus, weed, other forms of terrestrial or aquatic plants or other forms of animal life e.g., viruses, bacteria, or other micro-organisms, which the administrator declares to be a pest and (2) any substance or mixture of substances intended for use a plant regulator, de-foliant or desiccant (Pesticides in the Indian Environment, by P.K. Gupta p. 2) 14. From the above decision of the Supreme Court it is clear that pesticide includes any substance or mixture of substances intended for preventing, destroying, repelling or mitigatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 43/88-C.E. 18. In view of the above discussion, the appeals filed by the Revenue are dismissed and cross-objections filed by the respondents are allowed. 19. [Assent per : S.K. Bhatnagar, President]. - I would like to add and clarify that the main Heading 38.08 includes rodenticides; It also includes inse- cticidies, fungicides, herbicides and similar products. Since out of the two sub- headings namely, 3808.10 and 3808.90, the former does not specifically or expli- citly include rodenticides, that is why the Department has been contending that it would fall under the latter sub-heading 3808.90 which covers others . 20. The Department s contention is not without logic and at first sight appears to be in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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