1989(08)LCX0020

BEFORE THE CEGAT, SPECIAL BENCH ’C’, NEW DELHI

S/Shri G. Sankaran, Sr. Vice-President and D.M. Vasavada, Member (J)

COLLECTOR OF C. EX.

Versus

WALDIES LIMITED

Order No. 416/89-C, dated 30-8-1989 in Appeal No. E/1258/89-C

Advocated By: Shri A.S. Sunder Rajan, J.D.R., for the Respondents.

None, for the Respondents.

[Order per : G. Sankaran, Senior Vice-President]. - The only issue arising for determination in the present appeal is the classification under the Schedule to the Central Excise Tariff Act, 1985, of “White Lead” of various descriptions manufactured by the respondents. The Assistant Collector classified the products under Heading No. 2805.90 of the Schedule. The Collector (Appeals), however, set aside this order and classified the goods under Heading 2804.60. The Collector of Central Excise, Calcutta-II, being aggrieved with this order has come up in appeal.

2. Despite notice of hearing, the respondents were not represented before us when the appeal was heard 6n 3-8-1989. We have, therefore, heard Shri A.S. Sunder Rajan, DR, for the appellant-Collector and perused the record.

3. “White Lead” is described as a lead carbonate, basic, designated by the formula 2Pb C03.Pb(OH)2 in the “Condensed Chemical Dictionary” (Tenth Edition) by Gessner G. Hawley (page 606). “White Lead”, also according to page 292 of the Explanatory Notes under Heading 28.36 of the “Harmonised Commodity Description and Coding System” of the Customs Cooperation Council, Brussels (the Schedule to the Central Excise Tariff Act, 1985 is broadly patterned on the said system), is a basic lead carbonate. It is used in the manufacture, inter alia, of oil paints. It also is described as a drying pigment. There can, therefore, be little doubt that White Lead, being an inorganic salt of a metal and not being specifically described elsewhere, should appropriately fall under Heading No. 28.05 of the Schedule which reads -

“Salts and Peroxysalts, of Inorganic Acids and Metals”

and more specifically under sub-heading 2805.90 : “Other”. The respondents’ contention before the lower authorities appears to have been that, prior to the enforcement of the Central Excise Tariff Act, 1985, “White Lead” used to be classified under Item 14 of the repealed Central Excise Tariff Schedule, relating to Paints and Varnishes and that, therefore, it should continue to be classified under the heading appropriate to paints etc. This contention, evidently, lacks substance since the repealed Schedule and the Schedule to the Tariff Act of 1985 are totally different. Despite its finding use in paints etc., “White Lead” is more appropriately classifiable under Heading No. 28.05, sub-heading 2805.90 of the New Schedule. :

4. The aforesaid classification will hold good only upto 10-2-1987 when the Schedule underwent changes and thereafter it would be classifiable under Heading 28.36, sub-heading 2836.90 reading thus -

“Carbonates; Peroxycarbonates (Percarbonates), Commercial Ammonium Carbonate Containing Ammonium Carbonate

…… ……. ……..

…… ……. ……..

2836.90 Other “

This is because ”White Lead" is a carbonate and is not specified elsewhere;

5. The classification ordered by the Collector (Appeals) is under Heading 2804.60 reading thus:-

“28.04 Inorganic bases and oxides, hydroxides and peroxides of metals.

…… ……. ……..

…… ……. ……..

2804.60 - Lead oxides; red lead and orange lead."

This classification is, in our opinion, patently erroneous. This is because -

(a) Lead carbonate is not “lead oxide”.

(b) It is also not “red lead” which is red lead oxide.

(page 608 of the Condensed Chemical Dictionary)

(c) Nor is it “orange lead” which, according to the Explanatory Notes on page 263 of the Brussels Coding System referred to earlier, is a very pure saline oxide (of lead), more highly coloured and less dense than the common variety, or to lead oxides still containing lead carbonate from the cerusite used in their preparation.

6. In the above view of the matter, the impugned order is not sustainable insofar as the classification of “White Lead” is concerned. It is modified accordingly.

7. The appeal is allowed.

Equivalent 1989 (044) ELT 0162 (Tribunal)