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TMI Blog2000 (10) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... tants and similar products in addition to insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, sub-heading 3808.10 specifically refers to insecticides, fungicides, herbicides, weedicides and pesticides, sub-heading 3808.90 has been introduced as sub-heading to cover other categories which includes rodenticides, disinfectants and similar products. Accordingly the correct classification for disinfectants would be sub-heading 3808.90 as held by the lower authority. As observed by the lower authority the decision of the Supreme Court was in the light of the erstwhile Tariff Item 68 read with Notification 55/75 relating to entry No. 18 and not under Chapter Heading 38.08 which specifically mentions disinfectants separately from other categories like insecticides etc. Since disinfectants are separately mentioned and the Chapter sub-heading 3808.10 covers only insecticides, fungicides, herbicides, weedicides and pesticides, the disinfectants would fall only under Chapter sub-heading 3808.90. The order passed by the lower authority is correct as per the Tariff sub-heading and, therefore, does not call for any interference. The appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Bombay Chemicals Pvt. Ltd. v. Collector of Central Excise, Bombay reported in 1995 (77) E.L.T. 3 (S.C.) wherein the Honourable Supreme Court has held that disinfectant fluids produced from phenolic compounds and high-boiling tar acid, were entitled to the exemption under the erstwhile Notification No. 55/75 (Serial No. 18). The said judgment was either not in existence at the time of delivering the judgment relied upon by the learned SDR or was not placed before the Bench. The contention raised by the learned SDR that the Supreme Court s decision was given in the context of the erstwhile Tariff Item and the same would not apply to the new Tariff, is not appreciable inasmuch as a similar contention raised on behalf of the Revenue was considered by the Bench in the case of Grand Chemical Works and was rejected. In the said judgment of Grand Chemical Works, it was also observed that the Tribunal s decision in the case of Ambey Laboratories holding Phenol as not falling under sub-heading 3808.10, was overruled by the Honourable Supreme Court in Civil Appeal Nos. 4280-81/1991 with Civil Appeal No. 4279/91 delivered on 18-2-1997 [2001 (131) E.L.T. A86 (S.C.)]. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to change the classification to sub-heading No. 3808.10 on the ground that their product was similar to the one which was the subject matter of Supreme Court s decision in Bombay Chemical Pvt. Ltd. v. Collector of Central Excise, Bombay - 1995 (77) E.L.T. 3 (S.C.). 13. Before coming to the Supreme Court s decision in the case of Bombay Chemical Pvt. Ltd., let us first examine the product in question. The product Pheneol had been referred to as a powerful deodorant. According to the condensed Chemical Dictionary 9th Edition, revised by Gessner G. Hawley at page 260, deodorant is a substance used to remove or mask an unpleasant odor. It may or may not have a distinctive odor of its own. According to McGraw Hill Dictionary of Scientific and Technical Terms IInd Edition at page 428, it is a substance used to remove, correct or repress un-desirable odors. World Book Dictionary at page 558 defines it as a preparation that neutralises odors specially bad odors. Thus, the description of the product as deodorant signifies its odor neutralizing effect, to impart pleasant atmosphere to the place cleared by the product. In the process of manufacture, the liquid soap is used as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were covered within the meaning of insecticides. As per the cautionary note in Schedule O under Rule 126 of the Drugs and Cosmetics Rules 1945, mercury compounds were strictly excluded from all grades of disinfectant fluids. As per the product label also, mercury compounds were not added in the product. Thus, it is seen that the product in question was not recognised as insecticide which included pesticides. 16. According to McGraw Hill Dictionary of Scientific Technical Terms IInd Edition, pesticide is a chemical agent that destroys pests also known as biocide (page 1193). According to the Concise Chemical and Technical Dictionary III enlarged Edition by H. Bennett, pesticide is a product that is used as an insecticide, fungicide, acaricide (miticide), herbicide, rodenticide, bacteriacide, parasiteicide, nematicide and others used against pests (page 797). In para 6 of the Supreme Court s decision in the case of Bombay Chemical Pvt. Ltd. v. CCE, Bombay - 1995 (77) E.L.T. 3 (S.C.), pesticides has been described as under :- 6. Pesticide has been defined in Butterworths Medical Dictionary, Second Edition, as a comprehensive word to include substances that wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered in the context of the erstwhile Central Excise Tariff and involved the interpretation of exemption notification. Under the new Central Excise Tariff, the matter had come-up in the case of Rosin Terpentine Factory v. CCE, Chandigarh - 1997 (94) E.L.T. 187 (Tribunal) and the Tribunal had held as under :- In these two appeals filed by M/s. Rosin and Terpentine Factory, the point for determination is whether the phenyle was medicament as claimed by the appellants or was a disinfectant as classified by the Revenue. The Assistant Collector of Central Excise Chandigarh who had adjudicated the matter, had held that keeping in view the function, use and description of the product in question it was classifiable under Heading No. 3801.90 as disinfectant. The order passed by the Assistant Collector of Central Excise, Chandigarh was confirmed by the Collector of Central Excise (Appeals) Chandigarh who in para 5 of her order held as under :- 5. I have gone through the case records. The point for determination is whether Phenyl is classifiable under sub-heading 3901.90 or 3003.20 of Central Excise Tariff Act, 1985. I agree with the finding of the Assistant Collector that just bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1995 (75) E.L.T. 182 (Tribunal), it has been held that the liquid phenyl was disinfectant and was classifiable under sub-heading No. 3808.90. 20. Binding nature of the circulars issued by the Board has been emphasised by the Hon ble Supreme Court in a catena of decisions. In Collector of Central Excise, Patna v. Usha Martin Industries - 1997 (94) E.L.T. 460 (S.C.) = 1997 AIR SCW 3795, the Supreme Court had held that Section 37B of the Central Excise Act, 1944 enjoins on the Central Board of Excise Customs a duty to issue such instructions and directions to the excise officers as the Board considers necessary or expedient for the purpose of uniformity in the classification of excisable goods or with respect to levy of duty excised on such goods . It is true that Section 37B was inserted in the Act only in December, 1985 but that fact cannot whittle down the binding affect of the circulars or instructions or instructions issued by the Board earlier. Such instructions were not issued earlier for fancy or as ritual. Even the pre-amendment circulars were issued for the same purpose of achieving uniformity in imposing excise duty on excisable goods. So the circular whether issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s v. CCE - 1996 (87) E.L.T. 19 (S.C.) the Supreme Court had held that there can be no doubt that the circulars issued by the Central Board of Excise Customs are binding on the Central Excise Officers and the circulars are issued when the Board considers it necessary or expedient so to do to achieve uniformity in classification of excisable goods and the levy of excise duty thereon and the central excise officers were obliged to observe and follow those orders/instructions and directions. Any decision contrary to the Board s Circular No. 446/12/99-CX dated 17-3-1999 will go against the spirit of the Supreme Court s decision referred to above and it will lead to divergence practices and will not be in the interest of administration of justice. 21. The appellants have referred to the Tribunal s decision in the case of Grand Chemical Works v. Collector of Central Excise, New Delhi - 2000 (117) E.L.T. 730 (Tribunal) = 1999 (35) RLT 31 (CEGAT). We find that in that decision there was no product description and there was no discussion whether the product was for killing insects and whether it has the same characteristics as pesticides as per the observation of the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the appellants, argues that Pheneol stands classified under sub-heading 3808.10 as per the judgment of Hon ble Supreme Court in the case of M/s. Bombay Chemical Pvt. Ltd. v. C.C.E., Bombay : 1995 (77) E.L.T. 3 (S.C.), which was relied upon by the Tribunal in the case of M/s. Grand Chemical Works v. C.C.E., New Delhi : 2000 (117) E.L.T. 730 (Tribual) = 1999 (35) RLT 31 (CEGAT). The learned Advocate submits that the judgment of the Hon ble Supreme Court was in the context of the old Tariff but the position is unaltered in view of the subsequent judgment of the Apex Court in the case of Ambey Laboratories in Civil Appeal Nos. 4280-81/1991 with Civil Appeal No. 4279/91 delivered on 18-2-1997 [2000 (131) E.L.T. A86 (S.C.)] overruling the Tribunal s Order in Ambey Laboratories reported in 1992 (57) E.L.T. 330 wherein the Tribunal held that in view of the specific mention of disinfectant in the description of the heading 38.08 and its exclusion from the sub-heading 3808.10, will qualify it to be classified under sub-heading 3808.90. As the said order of the Tribunal having been overruled by the Hon ble Supreme Court on 18-2-1997, argues the learned Advocate, pheneol in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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