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TMI Blog1998 (2) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Revenue Control Laboratory at New Delhi who opined as follows : Textile lubricants : The sample is in the form of colourless slightly viscous liquid containing mixture of organo silicone compound and poly organo silicone compound and silicone which is free from mineral oil. Speciality textile lubricating oil The sample is in the form of colourless viscous liquid containing organo silicone compound. Amino function organic compound and poly organo silicone compound and silicone oil which is free from mineral oil. Mould release oil The sample is a colourless liquid which is a mixture of organic silicone compound and poly organo silicone compound. It is free from mineral oil. On the basis of the test reports and from statements and records obtained by the Department in the course of investigation, notice was issued proposing classification of the goods as silicone in primary form under Heading 3910.00; demanding differential duty on this basis for the period from November, 1988 to January, 1990. Notices were also issued on 4th September, 1992, 3rd February, 1993 and 23rd June, 1993 demanding duty for clearance from February to June, 1992, July-December, 1992 and Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemist himself describes the goods as organo silicone compound. These were nothing but silicone as ordinarily known. The goods were thus silicone in primary form. He contends that Chief Chemist in his letter dated 30th May, 1995 had no authority to say whether the goods were in primary form or not. This determination was required to be exercised by the assessing authorities, not by the Chief Chemist. He cites the decision of the Madras High Court in Linenaph Chemicals v. Union of India - 1993 (44) ECC 79. As to limitation, he contends that the appellant deliberately misclassified the goods as mineral oil when it knew that the goods did not contain mineral oil. Hence the classification has been rightly invoked. 4. The point is made by the Departmental Representative that it is not the function of the Chief Chemist to give opinion as to whether the products tested by him should be covered only a particular item of the tariff and that the value of the report of the chemist is only relevant insofar as the data obtained by him through the chemical analysis is concerned. Indeed, it does not appear necessary to seek expert opinion of the Chief Chemist to determine whether the product is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.A. Bryydson, Sixth Edn., Butterworth-Heinemann Ltd., Oxford, as reproduced below in support : Compounds having the formula SlH3.(OiH2)NO.SiH3 are referred to as disiloxane, trisiloxane etc., according to the number of silicon atoms. Polymers in which the main chain consists of repeating - Si - O - groups together with predominantly organic side groups are referred to as polyorganosiloxanes or more loosely as silicones. He says that the goods in question have been found conformed to the description silicon as referred to in the extract above, and that therefore, to be considered to be silicon. 7. We have reproduced in the first and second pages of our order the report of the Chief Chemist on the retest. The report does not deny that the goods contained organo silicone compound. However, the goods would be classifiable as silicones as if all preparations containing silicone are to be so classifiable. That is, however, not the case. Chapter 39 of the Central Excise Tariff follows, essentially, the nomenclature contained in the Harmonised System of Nomenclatures of the Customs Cooperation Counsel (HSN for short). The heading relating to classification of silicone in the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that give the products their active, distinctive qualities and properties. For example, in a coating (paint) compound, it is the polymer that coats, protects and binds. The adhesion caused by the synthetic glue is also due to the polymer. It would be a fantastic operation to assess medicines as a silicone under 15A simply because they contain silicon, even though silicone is the ingredient that gives the medicine its active character. Silicons find wide use as adhesives. They also find use in the preparation of varnishing compounds. To argue as the department does, all such products must come under 15A. And to travel further, many fibres are synthetic polymers in origin, nylon and polyester being the most well-known. We will then have to assess nylon and polyester according to the department, their specification under other heads would not prevent their assessment under the head specifying the material, synthetic polymer, of which they are made. 9. This decision makes it clear that it is not every preparation containing silicon that could be assessable under item 15A. Item 15A was essentially derived from the Harmonised System of Nomenclature (HSN), although it forms part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y defined compounds with separate identity. Their organo-silicon compounds constitute 89% of the mixture. (ii) speciality oil - gel formation chromatographic test shows that polyorganosilicon constitutes approximately 32% and the balance 68% being mixture of organosilicon compounds including amino function organic compounds as the part of mixture. (iii) mould release oil - Gel formation chromatographic test shows that the polyorganosilicon constituting approximately 47% and the balance 53% being mixture of chemically defined organosilicon compounds. From the above composition it is seen that the three products under reference are mixture of more than one component and one of the components being silicon polymer, the separate chemically defined organosilicon compounds are predominant in the mixture. In view of the above, the products in question may be considered as preparations containing silicons, other than, silicones in primary form . 10. The Explanatory Notes say (at page 575) that The silicones of the Heading (39.01) are not non-chemically defined products containing in the molecule more than one silicon-oxygen-silicon linkage, and containing organic groups ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon, the Collector must indicate reasons for not doing so. He should show reasons as to why he does not accept it, or that he chooses to rely upon some other report in preference to this report. The Collector does not rely upon any such evidence and does not indicate why he finds the report unacceptable, insofar as it relates to the products being non-chemically defined. 13. The Collector completely excludes from his consideration, the letter of the Chief Chemist containing the opinion discussed above. He emphasised on the fact that the products are free from petroleum/mineral oil and cites an opinion of the Director, Indian Institute of Petroleum. He goes by the statement of a partner of Aravali Enterprises and a partner of BC Corporation. According to order the products are also known as silicone oil. He lays emphasis on the fact that the goods are in primary form. The absence of petroleum or mineral oil is not by itself sufficient to hold that the goods thereby classifiable under Heading 39.01. For that to be done, as we are satisfied, they may satisfy the requirement in the tariff and the explanatory notes. The opinions of two persons in the trade, who are not claimed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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