1995(12)LCX0108

IN THE CEGAT, COURT NO. III, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and Lajja Ram, Member (T)

COLLECTOR OF CUS., MADRAS

Versus

BROMELS RUBBER INDUSTRIES PVT. LTD.

Final Order No. 413/95-C, dated 6-12-1995 in Appeal No. C/4214/91-C

Advocated By : Shri Sanjeev Sachdeva, SDR, for the Appellant.

None, for the Respondent.

[Order per : G.A. Brahma Deva, Member (J)]. - When the matter has come up for final hearing, none appeared on behalf of the respondents inspite of the fact that notice of hearing has been issued to them. Since the matter is old one, we have proceeded to pass this order after hearing Shri Sanjeev Sachdeva, ld. Departmental Representative for the Revenue.

2. The point to be considered in this appeal is whether item `Oil treated Sulphur’ imported by the respondents is classifiable under Tariff Heading 3823.90 as claimed by the Department or either under Tariff Heading 25.03 or 28.02 as per the party.

3. The goods were originally assessed as residual products under Tariff Heading 3823.90, but the party filed a refund claim, claiming reassessment either under Tariff Heading 25.03 or 28.02 as items specially meant for `Sulphur’. Their claim was rejected by the Assistant Collector on the ground that the goods imported are tailor made product for rubber industry and are classifiable as residual products under Tariff Heading 3823.90. On appeal, the Collector (Appeals) upheld the contention of the party in classifying the item under Tariff Heading 25.03. Hence this appeal by the department.

4. The relevant Tariff entries 25.03, 28.02 and 3823.90 are as follows :-

5. Shri Sachdeva submitted that Collector (Appeals) over-ruled the item under Heading 28.02 based on percentage of purity, but erred in classi- fying under Heading 25.03. Referring to the Chapter Note 1 to Chapter 25 under Section V of the HSN, he said that it must be in crude form and not products obtained by mixing and since the item is not crude it is not classifiable under Chapter 25 but as a residuary entry under Chapter 38. Chapter Note 1 to Chapter 25 reads as under :-

“1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallisation), but not products which have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading.”

6. We have considered the submissions and perused the records. We find that Sulphur under both the Tariff Entries 25.03 and 28.02. The goods under consideration i.e., oil treated sulphur are having 20% of oil content. Sublimed and precipitated sulphur classifiable under Tariff Heading 28.02 are usually about 99.5% pure. Since the oil content in the imported goods is about 20% they cannot be treated as sublimed or precipitated sulphur and accordingly they are not classifiable under 28.02 as it was rightly observed by the Collector in the order. Since the Entry 25.03 covers sulphur of all kinds other than sublimed sulphur, precipitated sulphur and colloidal sulphur and in view of this description particularly with reference to sulphur of all kinds, the item in question is classifiable under Tariff Heading 25.03 as it was rightly held by the Collector (Appeals). Since we do not find any infirmity in the impugned order, we uphold the impugned order and accordingly the appeal filed by the department is rejected.

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Equivalent 1998 (99) ELT 77 (Tribunal)