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TMI Blog2012 (9) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) TMI 8 - SUPREME COURT] defining Salt and Sulphur are dealt with in Chapter 25 and sulphur may be used for different purposes including agricultural purposes. Brimstone 90 is used for agricultural purposes as would appear from the descriptions referred to hereinafter - in favour of assessee. - E/1205, 1206, 1958, 1959/10 - - - Dated:- 6-8-2012 - Mr. M.V. Ravindran, Mr. B.S.V. Murthy, JJ. For Appellant: Shri P.M. Dave, Adv For Respondent : Ms. Mallika Mahajan, A.R. Per : Mr. B.S.V. Murthy; Appellant is engaged in manufacturing of COSAVAT FERTIS-WG (Sulphar 90%). They were paying duty and clearing the same by classifying it as fungicide and from June 2007 the appellant intended to change the practice and classified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce they were paying duty till 2007 and after seeing a gazette notification classifying sulphur 90 as a fertiliser, they changed the practice followed by them and reclassified the item thereby duty liable to be paid by them became nil. He submits that the process does not amount to manufacture at all and for this purpose he relies upon the chapter note 1 to chapter note 25, the decision of the Tribunal in the case of Deepak Fertilisers and Petrochemicals Corporation Ltd. 2002 (139) ELT 328 (Tri. Mumbai). He also relies upon the same decision to submit that the product is classifiable under CETH 2503 only and not under chapter 38. Further, he also submits that the chemical examiner/chief chemist cannot advise on classification but can only g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in each heading. 7. The chapter heading 2503 reads as under: 2503 Sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and colloidal sulphur 2503 00 Sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and colloidal sulphur; 2503 00 10 - - Sulphur recovered as by-product in refining of crude oil ... kg. 16% 2503 00 90 - - Other ... kg. Nil 8. It may be seen from the above that chapter heading 2503 covers sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and colloidal sulphur. Further, the sub heading 25030010 also covers sulphur recovered as by-product in refining of crude oil. The chapter heading and the sub heading clearly show that chapter note 1 can not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue in the case of Deepak Fertilisers Petrochemicals Corp. Ltd. cited above and the observations in paragraph 8 9 are relevant and are reproduced as below: 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 area of the sulphur particles. Rapid oxidisation is possible where the particle size is small. The fine particles, however, create handling problems. They provide irritation to the eyes and lungs. They can also be blown away by wind. They may float on the irrigation water. To enable the sulphur to be applied in a safe manner it is mixed with other fertilisers such as phosphate, etc., or with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above it can be seen that in both the other two cases the percentage of sulphur was brought down to 90% by adding other ingredients as in the case of the appellants. The observations of Hon ble Supreme Court would clearly show that CETH 2503 has to be preferred to other headings. 12. We need not consider whether the process amounts to manufacture or not in view of the fact that the classification of sulphur does not change by addition of the inert chemicals by the appellant as held in other decisions cited above. 13. Further, we also find that the classification claimed by the Revenue in this case under chapter 3824 cannot be accepted in view of the fact that the specific heading is to be preferred to general heading as he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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