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TMI Blog2017 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose - no evidence has been placed on record to establish that the material has been used for insecticidal purposes and therefore it cannot be said that registration under Insecticide Act is needed. Confiscation and penalty set aside - appeal allowed - decided in favor of appellant. - C/938 & 939/05 - A/94272-94273/16/CB - Dated:- 6-12-2016 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri J.C. Patel, Advocate, for Appellant Shri M.K. Mall, AC (AR), for Respondent Per: Ramesh Nair These appeals are filed by the appellant against Order-in-Appeal No. 58/2005 (JNCH) dated 25.5.2005 passed by the Commissioner of Customs (Appeals), Mumbai-II. 2. The fact of the case is that the appellant filed Bill of Entry No. 771986 dated 28.12.2004 for clearance of Boric Acid. The department has contended that as per Circular No. 61/2004 dated 28.10.2004 issued by CBE C, the goods namely, Boric Acid is to be treated as insecticide and to be classified under CTH 38081099. As per the said circular, the import of boric acid can be allowed only on production of a certificate of registration from Central Insecticide Board or a certificate of end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the Board s Circular No. 61/2004-Cus dated 28.10.2004 according to which the product boric acid imported by the appellant is classifiable under CTH 3808, which is not freely importable and subject to the conditions prescribed for import of insecticide falling under the CTH 3808. He further submits that the judgment cited by the learned Counsel in the case of Hardware Trading Corporation (supra) , the same was appealed against by the Revenue before the Hon'ble Mumbai High Court, which has been admitted as Customs Appeal No. 35 of 2006. 5. We have carefully considered the submissions made by both sides. We find that as per ITC (HS), the boric acid is specifically classified under CTH 2810, which is freely importable. 5.1 We find that the Tribunal in the case of Hardware Trading Corporation (supra) has observed as follows: - 8. The authorities below relied upon the Board Circular No. 61/2004, dated 28-10-2004 in rejecting the claim of the appellants. It is a contention of the appellants that no reasons have been given for classifying the imported Boric Acid under Heading 38.08 of the Customs Tariff as well as under the ITC-HS. Further, their contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in high pressure water reactors (see NUCLEAR REACTORS). 9. Further their contention is that the Boric Acid correctly falls under Heading 28.10 of the Customs Tariff/Excise Tariff/ITC-HS as it specifically covers boric acid by description. (i) Sub-heading 281000.20 of the Customs Tariff by name, specifically covers boric acids. (ii) Similarly, sub-heading 2810.00 of the Excise Tariff also covers by name, boric acids. (iii) Chapter 28 of both Customs Tariff and Excise Tariff are aligned with Harmonised System of Nomenclature (HSN). HSN Explanatory Notes to Heading 28.10 provide as under :- BORIC ACIDS : (i) Boric acid (orthoboric acid) (H2BO3) is obtained either by acid decomposition of natural borates, or by physico-chemical treatment of crude boric acid. (ii) It exists in the form of powder or small scales, micaceous flakes or vitrified lumps, with transparent edges, ash-grey or bluish (crystallized acid). It is odourless, greasy to the touch. (iii) Its uses include : as an antiseptic (boracie water) : for the manufacture of borosilicate glass (low coefficent of expansion), vitrifiable compounds, Guighnet s green (hydrated chromic oxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification supra. 16 . Heading 38.08 reads as under :- Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfections 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). 17. HSN Explanatory Note to the products of Heading 38.08 can be divided into the following groups : (I) Insecticides. Insecticides include not only products for killing insects, but also having a repellent or attractant effect. The products may be in a variety of forms such as sprays or blocks (against moths), oils or sticks (against mosquitoes), powder (against ants), strips (against flies), cyanogens gas absorbed in diatomite or paperboard (against fleas and lice). 18 A perusal of HSN Explanatory Notes to Heading 38.08. clearly shows that boric acid will not fall under Heading 38.08 as an insecticide. The boric acid as imported by the appellants in capable of killing any pest. 19 . As per the technical books, boric acid with the addition of anti-caking agents, is capable of killing coc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicants. After the receipt of the same, the applications may be put up to the Registration Committee. (iii) 3 applications are for indigenous manufacture for non-insecticidal use. These are also exempted from the requirement of registration under the Insecticides Act, 1968. They may be informed accordingly to follow the guidelines as suggested by the Department of Agriculture Cooperation. (iv) 2 applications which are for indigenous manufacture for insecticidal use and 5 applications which are for import for insecticidal use may be scrutinized as per the guidelines of the Registration Committee and put up to the Committee. (v) Department of Agriculture Cooperation may be informed the status of applications of boric acid accordingly with the request to provide the importers and indigenous manufacturers the guidelines for import/indigenous manufacture of boric acid for non-insecticidal use. From the findings of the said committee, it can be seen that the concerned Ministry is of the opinion that if boric acid is used for non-insecticidal purpose, no registration is required under the Insecticide Act, 1968. In other case, however, it may necessary to obt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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