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TMI Blog2008 (5) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 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 can also be blown away by wind. They may float on the 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 inert fillers such as bentonite clay. Such mixture is applied to the plants. On application of water bentonite expands and disintegrates the sulphur particles surrounding it. Over the years 10% bentonite in the mixture has been established as appropriate. 9. The addition of bentonite clay does not alter the chemical properties of the sulphur particles. Therefore even in admixture of the bentonite the sulphur does not merit classification under any other tariff entry. The sulphur component of such mixture also continues to fall under the term 'unrefined sulphur'. Therefore such unrefined sulphur tracing its origin in refinery processing natural gas, etc. of which it is a by-product would co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein since the decision in appellants' own case is by a coordinate Bench of two members. The question referred to this case would be classifiable under Chapter 2503 as per importers or under Heading 3808 by Revenue or under 3825 as a product of Chemical Industries as viewed hereinabove." The Larger Bench of the Tribunal, however, by its order dated 27th January, 2006 came to the conclusion that the said goods were classifiable under "Heading 3808.19 (sic) 3808.90". 8. Mr. A.R. Madhav Rao, learned counsel appearing on behalf of the appellant would submit that the Larger Bench of the Tribunal in arriving at the impugned judgment failed and/or neglected to consider not only the manufacturing process of "Brimstone 90", and the purpose for which the same is used but also the technical materials produced before it. 9. Mr. T.S. Doabia, learned senior counsel appearing on behalf of the respondent, however, would support the impugned judgment. 10. We may, at the outset, place on record the manufacturing process of the product in question, as noticed by the Tribunal itself:- "2. The manufacturing process and catalogue of Product was called as the goods were claimed to be crude and unref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal or physical processes (except crystallization), but not products that have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading." 12. Entry 2503 speaks of Sulphur of all kinds, other than sublimed sulphur, precipitated sulphur and colloidal sulphur. Entry 2503 00 10 read as under : "Sulphur recovered as by-product in refining of crude oil". 13. Heading 3808 deals with insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, sulphur - treated bands, wicks and candles and fly-papers). 3808 10 speaks of insecticides; 3808 20 fungicides ; 3808 30 herbicides, anti-sprouting products and plant-growth regulators and while 3808 90 speaks of other in the Schedule as stated by the Tribunal. There is no entry 3808 19. 14. The principal question which arises for our consideration is as to whether on the face of the said entries Chapter Note 1 of Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well known Rotoform system. According to Sandvik by consistent incorporation 8-10 % of bentonite in the Sulphur, the release qualities of the Sulphur in the soil are improved. In addition, this process, produces consistently sized granules with low flexibility and low dust content that are free flowing and easy to handle in storage and application" 22. Manufacturing process of Brimstone 90 would appear from Physical and Chemical Analysis report dated 11th August, 2003 issued by the National Est. for Agricultural and Industrial Sulphur, Dammam in the following terms :- "Manufacturing Process of Brimstone 90 We are submitted herewith the brief manufacturing process of Brimstone 90 received from our principals National Establishment for Agricultural and Industrial Sulphur. They receive molten sulphur from the refinery. It is pumped to a mixing vessel, which contains specially designed unit. Powdered bentonite along with other agent is fed into the liquid sulphur & a homogenous mixture is obtained by intense stiring. The mixture is then pumped through a uniquely designed filtration system into the roto form system, which consist of a roto form filtered unit & sandvik steel be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as "purified sulphur" or precipitated sulphur", must not be confused with the precipitated sulphur desired in the Explanatory Notes to heading 28.02" 29. Keeping in view the aforementioned background, we may have an analytical look at tariff entry No. 2808. It principally deals with insecticides, fungicides, herbicides etc. The same is to be put up in forms or packings for retail sale or as preparations of articles. What has been stated by way of example is sulphur treated bands, wicks, candles and fly-papers and not Sulphur itself. Sulphur treated bands etc. would be different from crude Sulphur or Brimstone 90. 30. The question which, therefore, should have been posed by the Tribunal while differing with the correctness of its earlier decision was as to whether the product is such which can be said to be insecticides, fungicides and herbicides etc. It is also of some significance that the Revenue was of the opinion that the product would come within the Entry 3808 30 40 being plant-growth regulators. The reference was in regard to the applicability of Entry 2503 and/or 3808 30 40. The Tribunal, however, made a new case by opining that it would come within Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps or as dust. (5) Refined sulfur, obtained by rapidly distilling crude sulfur and condensing it in the liquid state; sulfur thus obtained can then be moulded into sticks or cakes, or crushed after solidification. (6) Triturated sulfur, which is sulfur (impure or refined) in the form of a finely divided powder obtained by grinding and then sieving, either mechanically or by the gas suction. These products are known as "sieved sulfur", Winnowed sulfur", "automized sulfur", etc., according to the process employed and the fineness of the parties. (7) Sulfur, obtained by the sudden cooling of sulfur vapours without passing through the liquid phase, which is insoluble, particularly in carbon disulphide (sulfur u). The various types of sulfur classified in this heading are used in the chemical industry (preparation of numberous, sulfur compounds, sulfur dyestuffs, etc.) for vulcanizing rubber, as a fungicide in viticulture, in the manufacture of matches and sufur wicks and for the preparation of sulfur dioxide in the bleaching industries, etc. The heading excludes sublimed sulfur, precipitated sufur and colloidal sulfur (heading 28.02). Sulfur put up in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Denatured Salt" is specifically included in Chapter Heading No. 25.01. 39. In regard to Chapter Note 1 of Chapter 25 in HSN, this Court observed :- "Apart from this, similar chapter notes also appears in Chapter No. 1 of Chapter 25 in HSN which clearly provides that residuary Sodium Chloride left after chemical processing is covered by Heading No. 25.01. Chapter note 2 does not provide anywhere that in order to be covered by Heading No. 25.01 the product must not contain impurities. The bracketed portion in Chapter note 2 is being totally misread by the Revenue. The only effect of the bracketed portion is that if the goods in question are washed, such wash may be even with chemical substances eliminating the impurities without changing the structure of the product. It is not as if Chapter note 2 provides that in order to be covered by Heading No. 25.01, all impurities must be removed. Similarly, it is not provided either in Chapter 25 of the Central Excise Tariff or in Chapter note 2 or in HSN that in order to be covered by Heading No. 25.01, the starting material must be salt. Residuary Sodium Chloride left after chemical processing is clearly covered by Heading No. 25.01 as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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