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TMI Blog1988 (2) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... lassified under 15A(1). A notice of demand was issued in August 1982 to recover duty from the assessee on clearances from 28-2-1982 to 31-7-1982. The Assistant Collector decided that the goods were classifiable under 15A(1), and he required the assessee to pay a sum of Rs. 465,459.60. The assessee then appealed this decision to the Collector of Central Excise Appeal, Bombay who overruled the Assistant Collector and decided that the products were classifiable under Tariff Item 15AA. 3. In the arguments before us, the learned counsel for the department said that the goods were silicones and since silicones are listed in 15A(1) their assessment can be only under Item 15A(1). The Collector Appeals was wrong to classify the goods under 15AA by following the Tribunal's decision in order No. 368/83-C, dated 2-11-1983 re : Hico Products [1984 ECR 1991 = 1984 (16) E.L.T. 344 (Tri)]. Mr. Sundar Rajan concentrated on the fact that a silicone must be assessed under the head in which it finds specific mention and that head is Item 15A(1). 4. The matter, however, is not so straightforward or simple. According to the Collector, the assessee M/s. Auxichem import silicone oil and pay CV duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry into India, has been charged a CV duty, can be charged the same duty as excise duty again whatever may be done to the product later. For this reason alone, I pronounce the action of the Central Excise of assessing duty on these preparations under 15A to be irregular and unlawful. 9. The only silicones that are assessable under Item 15A are the synthetic polymers, the first stage when the silicone product, or if I may call it the undiluted, unmixed silicone polymer, is produced by synthesis. Generally speaking the states in which silicone appears are fluids, resins and elastomers. From these three so-called primary silicones, a number of derived products like sealants, rings washers, adhesives, surface active preparations, encapsulation cement etc. are obtained. Many of these preparations are in emulsions. All these preparations have other materials, additives, emulsifiers etc. added to aid and help in the use of the preparations in the desired industry application. 10. I am not able to see the logic of assessing everything and anything containing silicone under 15A. The department itself is mistaken to say that silicone oil is listed in 15A, and that these preparations co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VP Latex would not come under raw rubber. Since VP Latex was held to be raw rubber, it is difficult to see what the use of VP Latex has to do with its assessment as raw rubber. If it was raw rubber, that was enough for the purpose of assessment specially when we know that the substance has so many uses. In the case of M/s. Auxichem, the product is not a silicone, but a preparation containing silicone for use in textile processing. It is its properties as a textile processing preparation that will govern its assessment, a preparation that finds application by virtue of certain qualities that it has through the presence of silicone. The use of silicones is irrelevant if it were silicones that we are discussing; but we are not discussing silicones, but a textile finish preparation that contains silicone. And for assessing surface active agents/preparations, if the use is not to be looked into, how does the department discover if a mixture or compound is a surface active preparation ? Surface active property is an attribute possessed by several different substances which find more uses elsewhere than in surface active applications. 12. The amendment of the Tariff Item 15A in 1982 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The products occur in various forms; these find varying applications, the form depending on the use and vice versa. A lubricant which contains silicone liquid will also contain other medium, a carrier, an additive, a thinner or a thickener. The same article lists the form of silicones as fluid, powder, emulsion, solution, resin, paste; elastomer. These same forms of emulsion, fluid, resin, solution, will be found in preparations in the form of emulsion, fluids, pastes etc. etc. and so one and so forth. It is impossible to list the variation and the combination which the primary product can go into. I will only repeat what I have said: it would be a mistake to assess a product or an emulsion containing silicone a second time under 15A simply because it contains silicones in emulsion or in solution of in mixture. The classification of silicones and its products is immensely difficult, even tricky, and it would be easy to make a wrong identification. For my part, I hold to the view I wrote in 1984 ECR 1991 that a product like katrang 150 was assessable not under 15A though it contains silicone, but under 15AA, as a surface active preparation, because this was a more specific head. I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CCCN also makes this explicit exclusion in Chapter 39 in the heading on silicones. Furthermore, both Harmonized System and the CCCN specify lubricating preparations and mould release preparations containing silicones under heads outside the main SILICONES head. 17. For the reasons I have get out above, I rule that M/s. Auxichem's products we have been discussing cannot be assessed under Item 15A as they are not silicones, but only preparations of silicones. And as they are used in textile processing, it is evident that their nature is most akin to surface active preparations, wetting agents, softeners, and so on. For these products, there is only one appropriate item in the Central Excise Tariff : Item 15AA, which covers, with other products, surface active preparation, softeners, wetting agents etc. 18. [Order per : G. Sankaran]. - I have read with great care the order proposed by brother Shri Syiem. I agree with his conclusion that the products under consideration in this appeal are appropriately classifiable under Item No. 15AA of the Central Excise Tariff Schedule and not under Item 15A ibid. 19. However, I have to express my reservation on the finding contained in Para ..... X X X X Extracts X X X X X X X X Extracts X X X X
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