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TMI Blog2017 (1) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... registration from the concerned authorities under the Insecticide Act, 1968. Confiscation and penalty not sustainable - appeal allowed - decided in favor of appellant. - C/253/05-MUM - A/94165/16/CB - Dated:- 1-12-2016 - Mr. Ramesh Nair, Member (Judicial) and Mr. Raju, Member (Technical) Shri S.N. Kantawala, Advocate for the Appellants Shri S.J. Sahu, Asstt. Commissioner (A.R.) for the Respondent ORDER The appellant imported 396 MT 'Boric Acid' classifiable under CTH 2810 vide Bill of Entry 732987 dated 1/11/2004. The adjudicating authority by the impugned order confiscated goods with option to redeem the same on payment of fine of ₹ 10 lacs and penalty of ₹ 11ac imposed on the ground that as per Circular No. 61/2004 dated 28/ 10/2004 of the Central Board of Excise and Customs in respect of Boric Acid, it clarifies that the goods Boric Acid is to be treated as insecticide and classified under CTH 3808 and import of the Boric Acid is allowed only on production of certificate of registration from Central Insecticide Board or Certificate of end use from the concerned Ministry/ department of Government of India, which importer failed to prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 contention is that the Board Circular is not binding on them to contrary to the Customs Tariff Act. The Boric Acid is multi-furious use and in this regard they have relied upon the Kirk Othmer s Encyclopedia of Chemical Technology, 4th Edition, Vol. 4, the relevant text is extracted as under :- USES : (i) Boric acid has surprising variety of applications in both industrial and consumer products (6.57). It serves as a source of B2O3 in many fused products, including textile fiber glass, optical and sealing glasses, heat-resistant borosilicate glass, ceramic glazes, and porcelain enamels (see ENAMELS, PORCELAIN AND VITREOUS). It also serves as a component of fluxes for welding and brazing (see SOLDERS AND BRAZING ALLOYS: WELDING). (ii) A Number of boron chemicals are prepared directly from boric acid. These include synthetic inorganic borate salts, boron phosphate, fluoborates, boron trihalides, borate esters, boron carbide, and metal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rey 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 oxide), artificial borates (borax), hydroxy-and amino-anthraquinones; for impregnating candle wicks; for fire-proofing cloth. (iv) Crude natural boric acid falls in Heading 25.28 when containing not more than 85% of H2BO3, calculated on the dry weight, when the H2BO3, content exceeds 85%, the acid is classified in this heading. Metaboric acid (HBO2)n is also classified here. This heading does not include : (a) Tetrafluoroboric acid (fluoroboric acid) (Heading 28.11) (b) Glyceroboric acid (Heading 28.20) 10. The HSN Explanatory Notes does not say that boric acid is also used as insecticide or pesticide, presumably because boric acid is predominantly used as raw material. 11. The Supreme Court in the following cases has held that HSN Explanatory Notes are safe guide for interpreting the Tariff Entries (both under the Central Excise Tariff and Customs Tariff): (a) CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cockroaches. Therefore, the boric acid in the form in which it is imported, will not fall under Heading No. 38.08 insecticide. 20. The ld. Commissioner of Customs (A), Nhava Sheva, rejected the appeals filed by the appellants for not producing the end-use certificate from the concerned Ministry and classified the Boric Acid under Chapter Heading No. 38.08. 21. After going through the record, the Board Circular dated 28-8-2004, encyclopedia of the Chemical Technology and HSN notes, we are of the considered opinion that the Boric Acid is classifiable under Chapter Heading No. 28.10 of the HSN, but not under Chapter Heading No. 38.08. First of all, we have to state that the Boric Acid is normally used as raw material in the industry. Heading No. 38.08 covers those goods which are insecticides. The Boric Acid imported in the form is incapable of killing pests. The authorities below have failed to consider the contentions put forth in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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