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TMI Blog2018 (7) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 under sub-heading 2715.10 while the same were correctly classifiable under sub-heading 2715.90 of Central Excise Tariff. The period of dispute is February 1997 to March 1998. 2. Learned counsel for the appellant argued that the department was fully aware of the classification of the disputed goods in December 1990 and extended period of limitation could not have been invoked. He relied on the decision of the Hon'ble Apex Court in the cases of Nizam Sugar Factory vs. CCE, AP - 2006 (197) ELT 465 (SC) and ECE Industries Ltd. vs. CCE, New Delhi - 2004 (164) ELT 236 (SC). He further argued that the words used in fiscal statutes have to be construed not according to scientific/technical meaning of the term but how the product is understood b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Bituminous compound are manufactured by the mixing various ingredients such as Bituminous asphalt, used lubricating oil, & sediment of lubricating oil in mineral solvent. As already discussed in the earlier adjudication orders, a compound is a homogeneous entity in which the elements have definite properties by weight and represented by chemical formula. A compound has characteristics properties quite different from those of constituent elements. Hence the resultant product in. the present case is squarely fitted into being a compound made of different ingredients and having different properties. From the chemical structure/composition, the product falls under the classification subheading 2715.90 only. 7. As regards the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have to be effected in terms of Rule 3 for the interpretation of the schedule to. the Central Excise Tariff Act, 1985, As per the said Rule also, the goods are classifiable under 2715.90 occurring in the last of the numerical order. 10. Since the products are nothing but bituminous compound which is also not countered in the proceedings and conform to the description against heading No.27.15, they are correctly classifiable under heading No.2715.90 in terms of Rule 3(a) of the said entry refers the more specific description of the products. Even under Rule 3(c), the' product merits classification under heading 2715.90. 3.1 In this regard, the decision of the Tribunal in the case of CCE, Bombay vs. Indroll Lubricants & Specialiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n oil which has its flash point below 94oC. The lubricating oil having flash point below 94oC alone is to be included in this heading as claimed by the Learned DR is not a correct reading of the Tariff entry. The ground taken by the Revenue is that the oil is a speciality oil and hence it would not be included in this sub-heading. This reading of the Revenue is also not correct. The heading covers lubricating oil merely because the lubricating oil has been blended other compounds to make it more suitable for lubricating purpose in the gear box power transmission and other trivological functions by itself will not exclude the item as a lubricating oil. The function of the oil as a lubricating oil has not changed. As per the experts' evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analysed by my learned Brother Member (Judicial). I also agree with him that the Revenue has not produced any evidence to rebut the evidence produced by the assessee to show that the oil is not a lubricating oil as known by the users. 33. Accordingly the view expressed by the Member (Judicial) is concurred with in classifying the item under 2710.60 and to grant benefit in terms of Notification No. 120/84-C.E., dated 11-5-1984." 4. The issue which arises is whether the classification would depend on the end use of the product or on the composition of the product. The impugned order relies on the decision of the Tribunal in Meghalaya Electronic Dev. Corpn. Ltd. vs. CC - 1999 (106) ELT 246 that "classification of goods generally is not dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting oil that is to say any oil ordinarily used for lubrication excluding .........." 4.1 From the above, it is apparent that this is the kind of heading where the classification would be determined by the use. If the chemical composition of the product is to be the determinative factory or classification, then the sub-heading 2710.60 would become redundant as all lubricating oils falling under 2710 would find classification in other subheadings described on the basis of the technical features and parameters of the material. Thus the assertion made in the impugned order that the classification cannot be determined on the basis of the use of the product is misplaced, especially in the instant case where the sub-heading itself requires the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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