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TMI Blog2011 (1) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, warranting imposition of penalty. - E/391-392/2008 , E/3725/2004 - A/187-189/2011-WZB/AHD - Dated:- 25-1-2011 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : S/Shri C.S. Lodha and V.S. Sejpal, Advocates, for the Assessee. Shri Avinash Thete, SDR, for the Department. [Order per : B.S.V. Murthy, Member (T)]. In the present appeals issue involved is determination of question of classification of following products manufactured and cleared by the appellants as disinfectant preparations - Domex disinfectant cleaner, Domex power cleaner, Domex all purpose disinfectant cleaner and Domex all round home cleaner. The period involved is from October 2000 to Jan 2003. Two appeals i.e. E/391 and 392 of 2008 have been filed by M/s. Nirmala Dyechem (referred to as Appellant) and by Shri Naresh B. Naik, Partner of M/s. Nirmala Dychem, the appellant. These appeals are against the order-in-original passed by Commissioner on 22-1-2008. Revenue is in appeal against the order passed by Commissioner (Appeals) in respect of various show cause notices issued for the period Nov 2000 to Jan 2003, wherein he allowed the appeal filed by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r opinion, would therefore, require deeper consideration at the hands of the Commissioner. The matter has also to be considered from the angle whether the product is having active agents, having surface active function or that is only subsidiary to its main function as a cleaning preparation We may also notice that the Tribunal as also the Commissioner have not considered the rules of the interpretation of the schedule as also the explanatory notes, harmonized commodity description and coating system which may possibly provide aids for determination of the dispute. We are, however, not expressing any definite view on the matter, as we are remitting it to the Commissioner. We, however, make it clear that in the facts and circumstances of this case, the extended period of limitation as provided for in Section 11AC of the Central Excise Act, 1944, shall not apply.. The impugned order has been passed by the Commissioner is as per the directions of the Hon ble Supreme Court in the order referred to above. 5. In the meanwhile, when the litigation relating to the re-classification and demand for the period from Oct 1997 to Oct 2000 was going on, the demands issued by the Revenue for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sodium Hydroxide Sodium Hypochlorite Sodium Periodate Sodium Sillicate. 9. Learned DR submitted that the Commissioner has obeyed the directions of the remand order of the Apex Court and passed a very detailed order. He submitted that according to the description of the goods in the classification list filed by the appellant and on the label of the product and also literature would show clearly that the product cleans the surface and also kills the germs. He drew our attention to the word also used in the labels and in the manufacturing process and product description filed with the department and submitted that this would show clearly that the main purpose of the product is to clean the surfaces and it also serve the subsidiary purpose of killing germs. He further submitted that the reliance of the Commissioner on the decision of the Authority for Advance Rulings in the case of Technical Concepts International Limited - 2006 (204) E.L.T. 251 (A.A.R.) is appropriate and in this decision also the AAR, had taken a view that what is to be seen is the main purpose of the product and the fact that product is capable of killing the germs or it cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... temperature 28 degree Centigrade to 30 degree centigrade in the reaction mixure which is to be mixed in mixute and add DM water and sufficient Thickener. Process of Thickener making Take DM water in SS Vessel, heat upto 70 degree centigrade and add Lauric acid, caustic soda lye then solution is clear and add Lauryl Amine oxide, sodium silicates and perfumes and stirred for 15 minutes and then stop stirring. Then the product is packed in the retail containers of plastic. In the 173-B declaration dated 17-2-97, end use of the Domex All purpose Disinfectant Cleaner has been mentioned as a surface cleaner like floors, kitchen slabs, tiles, bathrooms etc. 12. It is the claim of the appellants that the four variants of the Domex contains Sodium Hypochlorite from 1.5% to 3% and they have relied upon the certificate issued by the Commissioner Food and Drugs Control administration. 13. Sodium Hypochlorite is, according to the Hawley s Condensed Chemical Dictionary which defines Sodium Hypochlorite as below :- Sodium Hypochlorite (NaOCl 5HOH) - Properties : Unstable in air unless mixed with sodium hydroxide. Strong oxidizing agents, usually stored and used in solution, dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same are reproduced :- 7.19 In the HSN the heading 34.02 comprises of two parts/groups covering (I) Organic Surface Active Agents (other than soap); and (II) Surface Active Preparations, Washing preparations and Cleaning Preparations, whether or not containing soap, other than those of Heading 34.01. 7.20 The said second group (II) comprises of (3) categories of preparations namely (A) Surface Active Preparations; (B) Washing Preparations and Cleaning Preparations, having a basis of soap or other Organic Surface Active Agents; and (C) Cleaning or Degreasing Preparations not having a basis of soap or other Organic Surface Active Agents. 7.21 The second category of preparations i.e. Washing and Cleaning preparations as appearing at page No. 630 of the HSN is as under; (B) Washing preparations (including auxiliary washing preparations) and cleaning preparations, having a basis of soap or other organic surface active agents. This category covers washing preparations, auxiliary washing preparations and certain cleaning preparations. These various preparations generally contain essential constituents and one or more subsidiary constituents. The presence of these latte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers) 3808.10 - Insecticides, fungicides, herbicides, weedicides and pesticides 3808.20 - Plant Growth Regulators. 3808.90 - Others. 23. Corresponding notes provided in HSN in respect of this Chapter are as under :- This heading covers a range of products (other than those having the character of medicaments, including veterinary medicaments-heading 30.03 or 30.04) intended to destroy pathogenic germs, insects (mosquitoes, moths, Colorado beetles, cockroaches etc.), mosses and moulds, weeds, rodents, wild birds, etc. Products intended to repel pests or used for disinfecting seeds are also classified here. These insecticides, disinfectants, herbicides; fungicides, etc., are applied by spraying, dusting, sprinkling, coating, impregnating, etc., or may necessitate combustion. They achieve their results by nerve-poisoning, by stomach- poisoning, by asphyxiation or by odour, etc. The scope of the said sub-heading 3808.40 is further enumerated at Page 681, 682 683 of HSN which reads as under : At pg. 681 of HSN, the scope of the products under the said Heading 3808 is referred as; These products are classified here in the following cases only (3) When they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having multiple uses and are therefore prima facie classifiable in more than one headings are usually classified by application of general Interpretative Rule-3. 25. We agree with the Commissioner on his observation that on the basis of extracts from HSN and the Tariff Heading, for a product to be classified as disinfectant under Chapter 38, the following conditions have to be satisfied by the product :- (1) The product should have capacity to destroy or irreversibly inactivate undesirable Bacteria, viruses or other microorganisms, generally on inanimate objects. (2) The product should be put up in packing for retail sale as disinfectants. (3) The disinfecting, insecticidal, etc. properties of the product should not be subsidiary to any other function. (4) The product should not be covered by more specific headings of the Nomenclature elsewhere. 26. As regards ability to destroy or inactivate undesirable bacteria, germs, microorganisms, etc. the Commissioner has agreed with the stand taken by the appellant. This is also supported by technical literature provided by the appellant. Further, the test reports submitted by the appellant in respect of their pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants that the Commissioner had completely ignored the decision in the following cases namely; (a) Bombay Chemicals case - 1995 (77) E.L.T. 3 (b) Bengal Chem. Pharmaceuticals v. CCE, Mumbai - 2001 (138) E.L.T. 844 (Tr. Mum.) (c) Balsara Hygiene Products Limited v. Collector of Central Excise - 1999 (106) E.L.T. 41 (Tribunal) (d) Rosin Terpentine Factory case - 1997 (94) E.L.T. 187 The decision in the case of Bombay Chemicals was rendered with reference to the erstwhile tariff as had it existed prior to 1986. In this case the Tribunal had found that the products under dispute were being referred to and marketed as disinfectants. In this case, the department s case is that the main function of the product is that of cleaning agent and the products are not being sold as disinfectants. Therefore, this decision is not relevant. In the case of Bengal Chemicals Pharmaceuticals, the Tribunal was considering the classification of Phenol . In this case, the Tribunal observed that the products were disinfectant fluid produced from Phenol compound and high boiling tar acid. Once again the question of subsidiary and the main purpose had not arisen in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on : Do not use the product along with other products, i.e.: Acids, Detergents etc. It may release dangerous gases (chlorine). Keep away from children. If swallowed drink one or two glasses of milk or water. Seek medical help. Avoid contact with eyes and skin. In case of accidental contact with eyes, rinse immediately with plenty of water and seek medical advice. Show the container or label to the doctor. In case of contact with skin, wash immediately with plenty of water. Keep only in the original container and store upright in a cool place. The labels and the contents clearly show that product is being sold as a cleaning agent which also kills germs. In fact, the label also says that it contains powerful Hypo formula, which obviously is Sodium Hypochlorite to show that it can remove dirt and stains completely and also kills germs. The words also kills germs indicates that the main purpose of the product is cleaning and subsidiary purpose is killing germs . The Commissioner has rightly ignored the affidavits submitted by the appellants from dealers, end users and the technical experts of the company. Only when there is doubt or label is not clear or the manufacturing process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, manufacturing process declared by the appellants under Rule 173(B) of Central Excise Rules, 1944, the product is sold to the public declaring as cleaning agent which also kills germs, the classification has to be as a cleaning agent. 33. It was also submitted that the chemical examination report was partial and does not help the case of the department. In fact while making submission, the appellant did not quote the last sentence, on the label it is stated to be used as cleaner , special preparations, 34.02(ii)(B) of HSN (cleaning preparations). This shows that the chemical examiner while examining report had seen the contents of the products and had also taken note of notes in HSN. If it was disinfectant or if the function was mainly that of disinfectant, chemical examiner could not have ignored. In any case, the dispute is not about the contents/ingredients of the product but about how the product is marketed and used. Chemical test report is one of the aspects which is required to be considered and there cannot be any dispute that it is in support of the Revenue s case. 34. In view of the above discussion we do not find any merit in the appeal filed by the appellants as ..... 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