2003(01)LCX0098

IN THE CEGAT, NORTHERN BENCH, NEW DELHI

S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)

J.K. SYNTHETICS

Versus

COMMISSIONER OF CUSTOMS, JAIPUR

Final Order Nos. 33-34/2003-NB(B), dated 14-1-2003 in Appeal Nos. C/266-267/2002-C

CASE CITED

J.K. Synthetics v. Collector — 1992(03)LCX0014 Eq 1992 (062) ELT 0041 (Tribunal) — Distinguished.................. [Paras 2, 3, 5]

Advocated By :     Shri M.K. Sharma, Advocate, for the Appellant.

Shri R.D. Negi, SDR, for the Respondent.

[Order per : S.S. Kang, Member (J)]. - The appellant filed these appeals against the impugned Order passed by the Commissioner (Appeals) whereby it is held that silicon oil spray imported by the appellant is classifiable under Heading 39.10 of Customs Tariff.

2. Heard both sides. The appellant claimed the classification of silicon oil under Heading 34-3-99 of the Customs Tariff on the ground that it is used by them as a mould releasing preparation and appellant relied upon the decision of the Tribunal in the case of J.K. Synthetics v. Collector of Customs reported in 1992 (062) ELT 41.

3. The contention of the Revenue is that silicon oil in primary form is specifically covered under Heading 39-10-00 of the Customs Tariff and as per Chapter Note VI of Chapter 39 of the Tariff. The contention of the Revenue is also that ratio of the decision of the J.K. Synthetics relied upon by the appellants is not applicable as the Tribunal decided the issue in respect of grant of benefit of Notification No. 136/86 and the classification issue was not disputed by their partner.

4. The appellants wants to classify the silicon oil under Chapter 34 of Customs Tariff on the basis of its use as mould releasing preparation. The use of goods cannot determine the classification as provided under the Customs Tariff. Chapter 39 of the Customs Tariff specifically covers the silicon in primary form. And Chapter Note VI of Chapter 39 of Customs Tariff provides that the primary form includes liquid and pastes, including dispersions (emulsions and suspensions) solution. We find that HSN Explanatory Notes at page 596 of Volume 2 of Second edition 1996 also supports the case of the Revenue.

5. The ratio of the decision relied upon by the appellant in the case of J.K. Synthetics (supra) is not applicable as the Tribunal had not decided the issue of classification of silicon oil. The dispute before the Tribunal was in respect of the benefit of the Notification No. 136/86 which provides concessional rate of duty to Lubricating preparations.

6. As the silicon oil is specifically covered under Chapter 39 of the Customs Tariff, we find no infirmity in the impugned Order, the appeal is rejected.

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Equivalent 2003 (153) ELT 443 (Tri. - Del.)