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TMI Blog2018 (10) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... case of M/s shakti Chemicals 2017 (357) ELT 522 (Tri.Mum) and in the case of M/s Parshwa Associates 2017 (348) ELT 706 (Tri.Mum) to assert that even if the product is notified insecticide for the purpose of customs classification, the same would falling under chapter 29 as organic chemicals if the same consist of only as Pure Chemicals. 3. He further argued that chapter note 1(A)(2) of chapter 38 clearly prescribed as follows: Notes: 1. This Chapter does not cover: (a) Separate chemically defined elements or compounds with the exception of the following: 1) Artificial graphite (heading 3801); 2) Insecticides, rodenticides, fungicides, herbicides, anti- spouting products and plant growth regulators, disinfectants and similar products, put up as described in heading 3808; He argued that the heading 38.08 covers only following items: Tariff Item Description of goods Unit Rate of Duty Standard Preferential Areas (1) (2) (3) (4) (5) 3808 Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and Similar products, put up in forms or packing for retail sale or as preparations or articles (for examp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all test facility, Manager of International Institute of Biotechnology And Toxicology wherein, following has been clarified: 1. QUERY: Whether the sample conform to the description "RYNAXYPYR TECH" OR NOT reply: The sample sent by Deputy Commissioner of Customs, Ahmedabad was analysed Cholorantraniliprole analytical standard by Liquid, Chromatography Mass Spectroscopy, a separation and characterization analytical test which unequivocally confirmed the test item (Rynaxypyr technical) is chlorantraniliprole technical. I would like to inform that Rynaxypyr is the trade name used for the chemical Chlorantraniliprole. The conformity and the characterization of the chemical was conducted by external standard method. A peak retention index in the High Performance Liquid Chromatographic separation clearly indicates the product is Chlorantraniliprole and the molecular mass obtained form the Mass specific detector matches with the molecular weigh of the test item referred in your letter as Rynaxypyr Technical. 6. Ld. Counsel asserted that the product consists of only the compound of Chlorantraniliprole and thus is classifiable under chapter 29, though it is insecticide notified under I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assert that the items Rynaxypyr Tech and Chlorantraniliprole are insecticide. He also pointed out that the same have been notified as insecticide under the only Insecticide Act. 9. Ld. AR relied on the decision of decision of Hon'ble Apex Court in case of Union of India Vs. Pesticides Mfg & Formulators Association of India 2002 (146) ELT 19 (SC) wherein it has held that pesticides technology would be classifiable under heading 38.08 of Central Excise Tariff Act, 1985 and not under chapter 28 and 29. He argued that though the tariff entry of central excise tariff at the material time was not the same as the tariff entry of customs at the time of import but the decision of Hon'ble Apex Court applies to the customs act as well. He pointed out that the said decision has been followed in number of cases. He particularly cited following judgments: * Hoechst Schering Agrevo Ltd Vs. CCE, Surat-I 2004 (169) ELT 289 (Tri-Mum) * Krypto (New Chemi Inds Ltd) Vs. CCE, Mumbai 2004 (1710 ELT 278 (Tri.Mum) * CCE, Ahmedabad- Vs. Dhariyal Chemicals 2014 (3090 ELT 727 (Tri.Mum) 10. We have gone through rival submission. We find that the dispute is if the product imported by the appellant " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... routing products and plant-growth regulators, disinfectants and Similar products, put up in fire-extinguishing grenades (heading 3813); (4) Certified reference materials specified in Note 2 below; (5) Products specified in Note 3(a) or 3(c) below; The chapter heading 3808 of Customs Tariff reads as under: Tariff Item Description of goods Unit Rate of Duty Standard Preferential Areas (1) (2) (3) (4) (5) 3808 Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and Similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulphur treated bands, wicks and candles, and fly-papers. The relevant HSN chapter rules to chapter 29 and 38 reads as under: HSN- Chapter 29 Organic Chemicals Notes. "1. - Except where the context otherwise requires, the heading of this Chapter apply only to: (a) Separate chemically defined organic compounds, whether or not containing impurities;" (D) Exclusion from Chapter 29 of certain separate Chemically defined organic compounds (Chapter Note 2) "2. Certain other separate chemically defined orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and dispersing agents, deodorant, masking agent, attractants and feeding stimulants to pesticidal chemicals in concentrated form, labelling or relabeling of containers intended for consumers and repacking from bulk pack to retail packs or the adoption of any other treatment to render the product marketable to the consumer shall amount to 'manufacture'." 10. Patently, Chapter Note 2 of Chapter 38 proceeds on the basis that TGP is covered by Chapter 38. Were it not so it was not necessary to provide that the addition of chemical pesticides and re-packing and labelling etc. of the product would amount to manufacture. The language in Chapter Note (2) that "addition of chemicals and other ingredients" to "products of heading No. 38.08" and adoption of any other treatment to render the product marketable would amount to manufacture, plainly understood means that (i) the product (without additives, or any treatment) as well as (ii) the product after administration of additives and (iii) the product after treatment for the purposes of retail sale were all but separately exigible to duty under the Chapter. The importance of the Chapter Notes in the matter of interpretation is manifest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Chapter Note 1(a)(2) and 2 of Chapter 38 read: "1. This Chapter does not cover: (a) Separate chemically defined elements or compounds with the exception of the following: (1) ............... (2) insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up as described in Heading No. 38.08; 2 In relation to products of heading No. 38.08, addition of chemicals and other ingredients like inert carriers or solvents, surface active dispersing and stabilising agents, emulsifiers, wetting and dispersing agents, deodorant, masking agent, attractants and feeding stimulants to pesticidal chemicals in concentrated form, labelling or relabelling of containers intended for consumers and repacking from bulk pack to retail packs or the adoption or any other treatment to render the product marketable to the consumer shall amount to manufacture". Tariff Heading 38.08 now reads as: "Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (fo ..... 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