9911796707
TMI Blog2006 (10) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... mixing with Bentonite powder falling under Chapter Heading 2508.10 and Magnesium Oxide to bring into existence Sulphur Bentonite would fall under Chapter Heading 3824.90 and 3824 90 90 (from 1-3-2005) of Central Excise Tariff subject to duty at the rate of 16%. 2. The appellant's contention is that the classification adopted by the Commissioner is not justified and that the item has to be classified at nil rate of duty under Chapter Heading 25.05 in terms of Chapter Note 1 of Chapter 25 of Section V of Schedule to Central Excise Tariff Act 1985. They contended that the issue is fully covered in their favour in terms of Tribunal's ruling rendered in the case of Deepak Fertilisers and Petrochemicals Corpn. Ltd. v. CC, Nhava Sheva - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific query from the Bench as to whether any evidence has been produced by the Revenue to prove that unrefined Sulphur on being mixed Bentonite Clay and Magnesium Oxide has become a new product as known in the trade and as to whether there is any Chemical Examiners reports, the learned JDR submitted that there is no such evidence produced by Revenue in terms of the impugned order. However, he reiterated the Commissioner's findings. 4. On a careful consideration, we notice that the ruling rendered in the case of Deepak Fertilisers (supra) by the Tribunal cannot be distinguished. The Tribunal in the Deepak Fertilisers (supra) has held in Para 2 to 11 as follows. "2. The short point thus for consideration is whether the contested go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 6. Shri Sridharan, the learned counsel submitted that the refinery was engaged in refining petrochemicals from which the liquid sulphur was obtained as a by-product from sour natural gas. In terms of the sub-note (4) referred to above he claimed that this sulphur at the molten stage was unrefined. On examination of the literature and the HSN sub-notes we find that this claim has merit. 7. Whether the unrefined nature of the sulphur would be Whether the taken away by blending it with the bentonite clay is the next question that is to be decided. 8. Elemental sulphur has wide use as a fertiliser. Elemental sulphur has to be oxidised to sulphate before it can be absorbed by the plant. The rate of oxidisation depends upon the surface are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification. 11. The appeal thus succeeds and is allowed with consequential relief." 4.1 The appellants have shown the similarity of the case of Deepak Fertilisers (supra) with that their case by producing a chart. The same is reproduced herein below. S. No. Facts in Deepak Fertilizer & Petrochemicals Corporation Ltd. case Facts in the appellant's case 01. Goods imported Goods locally manufactured 02. Nomenclature Brimstone 90" (brand name) Nomenclature--"Gromor"--Brand name 03. Agriculture sulphur is also called elemental sulphur Used for Agriculture is also called elemental sulphur 04. Briefly the product was manufactured by mixing clay (Bentonite) to molten sulphur. The ratio of sulphur to Bentonite is 9:1 (Para 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lphur in C.E.T after mixture with bentonite clay which does not alter the chemical properties of imported molten sulphur. The above Chart was also furnished to the authorities below, however, he has attended to distinguish the judgments of Deepak Fertilisers (supra). 4.2 On our careful consideration, we find that the appellants have explained the reasons for mixing the Bentonite Clay and Magnesium Oxide. This mixing as held in the case of Deepak Fertilisers (supra) does not alter the chemical properties of the sulphuric peroxides. The Tribunal in the Deepak Fertilisers case (supra), as per the findings extracted above have clearly held that no new product has arisen on such mixing. The same Bentonite and Magnesium Oxide are fillers a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
