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TMI Blog2013 (9) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is used as a preventive against termite infestation and powder falling. The appellant classified the product under CETH 3808.10 applicable to "insecticides, fungicides, herbicides, weedicides and pesticides" and discharged duty liability thereon accordingly under the provisions of Section 4 of the Central Excise Act, 1944. However, the department was of the view that the product merits classification under CETH 3808.90 as "disinfectants and similar products" and is liable to excise duty under the provisions of Section 4A of the Central Excise Act as the said heading is notified under the said section. The period of dispute is 2001-02. Accordingly a show cause notice, dated 20-5-2002 was issued to the appellant proposing to classify the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under CETH 3808.10. (4) As per the label affixed on the product, the product is not used to kill termites but works as a disinfectant and in a larger sense, insecticide means 'to kill insects'. (5) As per HSN Explanatory Notes, CETH 3808.90 also includes products used to control termites. 2.2 The lower appellate authority, after considering the submissions made by the Revenue, agreed with the same and held that the product is classifiable under CETH 3808.90. Aggrieved of the same, the appellant is before us. 3. The ld. Counsel for the appellant made the following submissions :- (a) Classification under Insecticides Act, 1968 is not relevant for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged in the appeal memorandum filed before the lower appellate authority and submitted that the impugned order is sustainable in law. 5. We have carefully considered the rival submissions. 5.1 From the records, it is seen that the printed label on the product reads as follows :- "WUDCURE With CSNL A TOTAL PROTECTION TO WOOD Power Antifungal Herbal Base Preventive Against Termite Infestation & Powder falling" The product literature describes the product as follows : "Wudcure Wood Preservative is a CNSL based colourless wood preservative is made from 4G formulation. The first 4G technology product in the world. Used for all types of wood and wood panel products. Features & Benefits : * P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds, wicks and candles, and fly papers) 3808.10 - Insecticides, fungicides, herbicides, weedicides and pesticides 3808.20 - Plant growth regulators 3808.90 - Other" 5.4 As per HSN Explanatory Notes,- "(I) Insecticides : Insecticides include not only products for killing insects but also those having a repellant or attractant effect.......Many insecticides are characterized by their mode of action or method of use. Among these are: - insect growth regulators - fumigants - chemosterilants - repellants : substances which prevent insect attack by making t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), classification under Insecticides Act, 1968 is not determinative of a product's classification under the Central Excise Tariff Act. Thus even if a product does not conform to the definition of 'insecticide' in the Insecticides Act, 1968, it can still be classified as an insecticide for the purposes of Central Excise Tariff if the product is marketed as an insecticide and is used as such. In the present case, the test of marketability and use as an insecticide is satisfied. Further, it is not necessary that to merit classification as an insecticide, the product should kill the insect. Even if the product repels the insects, it would suffice as can be seen from the HSN Explanatory Notes and as held by this Tribunal in the case of Bayer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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