2017(04)LCX0116

Mumbai Tribunal

Sah Petroleums Ltd

Versus

Commr. of Cus. (Import)

C/86916-86919, 86944-86945/2014 decided on 26/04/2017

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

Final Order Nos. A/87132-87137/2017-WZB/CB in Appeal Nos. C/86916-86919 and 86944-86945/2014-Mum

Sah Petroleums Ltd.
Versus
Commr. of Cus. (Import) JNCH, Nhava Sheva

Appearance:
Shri.D.B. Shroff  for appellant
Shri.V. K. Singh for respondent

CORAM:
Hon ble Mr.Ramesh Nair (Member)
Hon ble Mr.Raju null (Member)

Date of Decision : 26/04/2017

Order per : Ramesh Nair, Member (J). - These appeals have been directed against Order-in-Original Nos. 33/2014/GAC/CC(I)/AB/Gr. Oil Unit, dated 19-3-2014, 37/2013/GAC/CC(I)/AB/Gr. Oil Unit, dated 25-2-2014, 25/2013/GAC/CC/(I)AB/Gr. Oil Unit, dated 5-3-2014 passed by the Commissioner of Customs (Import), Mumbai.

2. Vide the impugned order the adjudicating authority has confirmed duty demands of Rs. 85,04,056/-, Rs. 3,56,62,299/- and Rs. 2,37,45,979/- against the Appellants M/s. Apar Industries Ltd., M/s. Sah Petroleum Ltd. and M/s. Gandhar Oil Refinery (I) Ltd. respectively for the period 1-8-2011 to 12-8-2013 by classifying the Rubber Process Oil (RPO) imported by Appellants under CTH 27079900 as ‘Oils and other products of the distillation of high temperature coal tar, similar products in which the weight of aromatic constituents exceed that of non-aromatic constituents’. Interest liability on the above demands were also confirmed and penalties under the provisions of Customs Act were imposed. Penalties were also imposed upon co-appellants who are employees of the Appellant companies. Further the seized goods i.e RPO weighing 527.152 MTs, 3000 MTs and 1487.919 MTs lying in the warehouse and belonging to the Appellants adjudged as hazardous waste was allowed to be re-exported. Aggrieved with the impugned orders the Appellants are before us.

3. The brief facts of the case are that the Appellants are engaged in the manufacture of RPO and have been importing the same since long time, classifying the same under chapter heading 2710. The RPO is manufactured by lubricating oil refineries from vacuum gas oil. The oil is cracked at high temperature and treated with solvents, various types of lubricating oils are obtained and the bottom residues that remain are called aromatic extracts. These aromatic extracts are used by the rubber industries and are called RPO. The raw RPO imported is blended with various solvents to manufacture finished RPO for use by the rubber industry. Vide Notification No. 52/2011-Cus., dated 25-6-2011, the basic custom duty on goods falling under CTH 2710 was reduced to 5% adv. By a Circular dated 12-8-2011 the C.B.E. & C. clarified that RPO which meets with the requirement of Note 2 of Chapter 27 would remain classified under CTH 2710 i.e where the aromatic constituents does not exceed by weight the non-aromatic constituents. After the issue of the above circular the Customs department started drawing samples for testing the aromatic content. The consignments belonging to the importers including the Appellants were stored in one common warehouse tank. The samples were sent to the Customs’ own test laboratory in Mumbai, M/s. Geochem who after testing reported that the aromatic content was less than 50%. Thereafter the clearance was allowed. Thereafter in December, 2012 the Customs House Laboratory at Kandla issued a note that they had the facility for testing the aromatic content and the method used by M/s. Geochem at Mumbai was wrong. Therefore in January, 2013 the department drew samples from the common tank where all the imported RPO were stored and the same was sent to CRCL, New Delhi for testing. The test report from CRCL stated that the sample did not meet with the requirement of Petroleum based processed oil for rubber industry as per BIS : 15078 : 2001 in respect of kinematic viscosity (KV) at 100°C and density @ 15° C and the aromatic content was 77.2% and the aniline point was 46. The Customs Department sent the sample once again to CRCL, New Delhi for testing as to whether the product was hazardous due to presence of poly-nuclear aromatic content. The CRCL vide report dated 15-4-2013 certified that aromatic content was 79.4%, the KV was 28.1 cst and the density to be 1.2807 and the PAH was 356.14 mg/kg. Accordingly it opined that sample did not meet with the requirement of BIS specification of RPO and hence it was a off specification/waste product as per Basel Convention (basel No. A 4140 under schedule III, Part A of Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008, since the PAH content in the sample was more than 50mg/kg. In view of the aforesaid report the custom department issued a show cause notice dated 8-8-2013 alleging that the product was mis-classified, was off- specification and was hazardous and therefore illegally imported. Though the Appellants sought re-testing by a recognized laboratory and cross examination of the Chemical Examiner, the same was not allowed and the demands, penalties and proposals made in the show cause notice were confirmed.

4.  The adjudicating authority held that from the report of CRCL it is confirmed that the Aromatic constituents in the consignments of RPO was more than non-aromatic constituents. As per chapter note 2 of Chapter 27 of First Schedule to the [Customs Tariff Act, 1975] references to “petroleum oils and oils obtained from bituminous minerals” include not only petroleum oils and oil obtained from bituminous minerals but also similar oils as well as those consisting mainly of fixed unsaturated hydrocarbon obtained by any process, provided that the weight of the non-aromatic constituents exceeds than that of the aromatic constituents and hence goods are classifiable under CTH 2707 which is specific heading for classification based on aromatic constituent in place of CTH 2710 and BCD is leviable @ 10% instead of @ 5% as claimed/assessed by the importer under CTH 2710. In respect of seized goods he also held that the goods were found to have been containing aromatic contents of more than 70% and PAHs (polycyclic aromatic hydrocarbons) more than prescribed limit under Class ‘A’ Schedule II and fell under Part A of Schedule III and hence hazardous under Hazardous Wastes (Management, Handling and Trans-boundary Movement) Rules, 2008. Being aggrieved the Appellants filed appeal before this Tribunal. Earlier the appeals were decided by the Tribunal vide Order dated 27-6-2016. However the Hon’ble High Court vide Order dated 26-9-2016 has remanded the appeals back to the Tribunal.

5.  Shri D.B. Shroff, ld. Sr. Counsel with Shri Mihir Mehta, ld. Advocate appearing for the Appellants has submitted that they had imported RPO which is used for finished rubber process oil. The goods were tested by the Customs approved laboratory M/s. Geochem and the test results indicated that the aromatic content of less than 50%. That in view of self contained note of Kandla Custom House Laboratory the samples lying in storage tank were sent for testing to CRCL, New Delhi. The CRCL in its report dated 12-2-2013 stated that the sample did not meet the requirement of petroleum based RPO for rubber industry as per BIS : 15078 : 2001 in respect of kinematic viscosity (KV) at 100° C (31.7 cst) and density at 15° C (1.0207). It also indicated that the aromatic content was 77.2 % and the aniline point was 46. He submits that the said BIS Specification is not relevant for raw RPO and is relevant only for final RPO. As far as viscosity and density are concerned, the same gets lowered when it is blended with other base oils to obtain the finished RPO and the viscosity and density of the same are within the BIS Specification Range. The BIS Specification does not give any specifications of the Aromatic content which means that it is not part of Aromatic content. That from the CRCL’s communication to the Commissioner of Customs (Import) dated 23-8-2011 it is clear that the Aniline point is the indicator of the Aromatic content. In other words the aromatic content is not a part of the said specification. Even the same is clear from the CRCL communication that the Aniline point is the indicator for aromatic content in petrochemical oil and hence no separate testing for aromatic content is required separately at all. From the test report it is seen that Aniline point was within range specified in BIS Specification which is relevant. Despite the CRCL has reported aromatic content of 77.2% which is wrong. In the same communication of CRCL it has been informed that JNCH laboratory was equipped for all tests as per BIS Specification namely density, kinematic viscosity, flashpoint, aniline point and pour point (admittedly the aromatic content is not a part of the specification). It was stated that if the sample did not confirm to the requirements of BIS Specification, then the samples should be forwarded for a hazardous waste analysis to the laboratory of Custom House, Mumbai which was equipped by the Board for such analysis or alternatively to the laboratory of Indian Rubber Manufacturer Association (IRMRA). The said communication also stated that the imported product in the name of RPO are mainly aromatic extracts (generated organic residues from petrochemical process and refining), which are produced during the refining of lubricating oil base stock and such aromatic extracts derived from the treatment of lubricating oils with certain extracts derived from the treatment of lubricating oils with certain solvent would be covered under Chapter Heading 27139000 and not under 2707.

6.  That during adjudication proceedings they had requested for retesting of imported goods and chemical examination which was not granted to them. That post filing the present appeals, they had filed Writ Petition before the Hon’ble High Court of Mumbai for retesting of samples by independent competent agency. Also during the proceedings before the Hon’ble High Court, it became clear from the communications addressed by the CRCL that they did not in fact possess the requisite equipment to test the PAH and that they had in fact got the testing done through another laboratory. The Hon’ble High Court vide Order dated 10-10-2014 on the basis of the Communication by the Director, Ministry of Environment & Forests wherein names of 6 independent laboratories in Maharashtra and which were approved/recognized by the Ministry of Environments & Forests, directed the Customs Authorities to draw fresh samples and submit the same. Accordingly fresh samples were sent to M/s. Ashwamedh Engineers & Consultants C.S.L and the Assistant Commissioner, Customs Oil Unit directed them to give a report on or before 20th November, 2014. The said laboratory in its report dated 20-11-2014 reported that the samples showed that the RPO was non-hazardous with respect to the PAH as per Schedule-II, Class-A of the said Rules. The Hon’ble High Court thereafter passed order permitting the Appellants to withdraw the writ petition and rely upon the report of M/s. Ashwamedh Eng. in their appeal filed before Tribunal. The Appellant thereafter filed an application before Tribunal for provisional release of the goods lying in the storage tanks. The revenue again objected to report of M/s. Ashwamedh before the Tribunal regarding sampling and test. The Tribunal vide order dated 3-7-2015 by consent of both sides directed that the sample could be analysed by yet another independent laboratory and directed samples to be drawn in the presence of both sides. The Department pointed out that M/s. Sky Lab Analytical Laboratory, Kalyan was also recognized and had a fully equipped laboratory for testing RPO. The Tribunal directed for sending of samples to M/s. Sky Lab Analytical Laboratory, Kalyan, for testing the hazardous nature of the sample. Vide report dated 8-10-2015 M/s. Sky Lab Analytical Laboratory reported that all RPO is non-hazardous with respect to PAH as per Schedule-II, Class A of the said rules. That it is clear from the above facts that the CRCL did not have the necessary expertise nor it has the necessary equipment to test the PAH content. It had not actually tested PAH content and testing of PAH content was outsourced without disclosing that it had not itself tested the PAH content. That the above facts also show that two independent laboratories, one each appointed by the Hon’ble Bombay High Court and this Hon’ble Tribunal, have both tested the sample and reported that the RPO sample sent to them was non-hazardous in nature as SCHEDULE-II CLASS A of the said Rules. The above two independent, report is not challenged or disputed by the department and have been accepted by the department. He submits that in view of such facts the impugned order holding that imported RPO is hazardous and confiscation thereof as well as demand of duty is illegal and is required to be set aside.

7.  He submits that the CRCL report gives no methodology (test method) for arriving at the PAH content. It is pointed out that there was a specific method that have to be employed for determining the PAH content. Further, there was no mention in the said report as to how many PAH had been considered by the CRCL which is important aspect in view of the fact that in Schedule II of the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules 2008, there are only 10 specific PAHs out of several hundred existing PAHs that have been declared to be hazardous as they are carcinogenic in nature. It is only these 10 PAHs which are all fused with aromatic rings, that together must weigh 50 mg per kilogram, and, that all the PAHs do not fall under Schedule-II of the Rules. That unless the PAH is identified individually and its individual concentrations are found and to be collectively more than 50 mg per kilogram, then only can the substances be said to be hazardous. That having not done this exercise it cannot be said that the goods are of hazardous nature.

8.  He further submits that the finished RPO meets the BIS Specifications laid down in BIS : 15078 : 2001. That the goods are classifiable under chapter sub-heading 271390 00 as prayed by them in their appeal. The imported RPO is not a distillation column product. The raw RPO is manufactured by lubricating oil refineries from Vacuum Gas Oil (VGO) derived from the refining of crude oil and this cut is just before diesel. The bottom remains are called extracts derived from the treatment of lubricating oils as with certain selective solvents. These are furfural extracts of different grades and are to be classified under Chapter 2713.39/2713.30 as “other residues of petroleum oils or of oils obtained from bituminous materials”. That the said classification is accepted by the Dy. Chief Chemist, CRCL as stated in Circular No. 11/1989, dated 13-2-1989 and that the Board has accepted the opinion of Dy. Chief Chemist. He has drawn our attention to description of goods under chapter sub-heading 27.13 and contended that 27139000 covers “other residues of petroleum oils or oils obtained from bituminous minerals”. He submits that the HSN Explanatory Note in chapter makes the position clear and also relies upon CRCL letter dated 23-8-2013 addressed to the Commissioner of Customs (Import) on classification of RPO under chapter heading 271390 00. He submits that their submission on classification as above was not considered by the Adjudicating authority. He relies upon the following judgments to say that the classification of the goods can be raised at any stage : (i) J.K. Synthetics Ltd. v. Collector of Customs (Tribunal) (ii) Collector of Customs v. Photogravurs (India) Pvt. Ltd. (Tribunal) (ii) Voltas Ltd. v. Collector of Customs, Bombay (S.C.) He submits that the assessment of imported RPO at the time of clearance was final assessment. He further submits that prior to introduction of Notification No. 52/2011, dated 25-6-2011 the duty was 10% on goods falling under Chapter Heading 27.10 and in the said notification it was reduced to 5%. That it is after the reduction of the duty that the department started objecting to the classification. By Circular dated 12-8-2011 the C.B.E. & C. stated that the RPO which meets the requirement as stipulated in chapter note 2 would remain classifiable under Chapter sub-heading 27.10 and that it was only after the issue of the said circular that the Customs Department started drawing samples. Prior to introduction of Notification No. 52/2011, the duty payable under Chapters 27.10 and 27.07 was same and hence no dispute arose. He submits that since there is no suppression or intention to evade duty, demands raised by invoking extended period are not legal.

9.  The Special Counsel, Shri K.M. Mondal appearing for the revenue submits that the goods were wrongly classified by the Appellants under Ch. Sub-heading 27101960 by the importers. CRCL Test report showed aromatic contents in the sample more than 70% by mass and therefore as per chapter Note 2 of Chapter 27 the chapter sub-heading 2710 is not applicable since the goods were found to be containing aromatic constituents more than the non-aromatic constituents. The goods are therefore classifiable under Chapter Heading 2707. He has relied upon C.B.E.&C.’s instructions contained in letter F. No. 528/96/2011, dated 12-8-2011 regarding classification of “rubber process oil” wherein it is stated that Rubber Process oil (RPO) which meets the requirements stipulated in Chapter Note 2 of Chapter 27 would remain appropriately classifiable under sub-heading 2710. However in case where weight of aromatic constituents exceeds non-aromatic constituents, then such product would appear more appropriately classifiable under Chapter sub-heading 2707. That it was also clarified that if kinematic viscosity is more than the prescribed limit and aromatic content is more than 70%, such oil might be hazardous due to presence of Poly Nuclear Aromatic contents (PAH). The contention of Appellants that RPO being petroleum based oils cannot be classified under Chapter sub-heading 2707 which is meant for oils and other products of the distillation of high temperature coal tar is bereft of merit. The HSN Explanatory Note (2) read with relevant portion of HSN Explanatory Note (B) clearly shows that the goods fall under heading 2707. He relies upon the Board Circular dated 13-2-1989 to support his claim. He submits that the Commissioner in holding that the goods are Hazardous waste has relied upon the report of CRCL, New Delhi which has opined that the goods does not meet the requirement of RPO for rubber industry. That the goods were got tested at the instance of Hon’ble High Court and Tribunal by M/s. Ashwamedh Engineers & Consultants and M/s. Sky Lab Analytical Laboratory. However the test methods adopted by them are different in respect of various items such as ash content, flash point, density at 15°C, Kinematic Viscocity at 100°C etc. That the Ashwamedh Laboratory is accredited by NABL for testing of PAH content in used/waste oil only. That as per letter of Dr. Y.K.S. Rathore, Director, CRCL for analysis of PAH content in sample u/s, CRCL has sub contracted services of M/s. Avon Food Lab Pvt. Ltd. in pursuance of Board’s Circular No. 9/2009-Customs, dated 23-2-2009 which is notified by Ministry of Environment & Forest. The said agency is accredited for “Testing of PAH content in Petroleum Products” from National Accredition Board for Testing and Calibaration Laboratories as per standard of ISO/IEC 17025:2005 whereas Mr. Ashwamedh is not accredited for said test. That the said laboratory has given only factual report without drawing any conclusion as it is not the duty of the laboratory to do so. He relies upon the judgment of Hon’ble Delhi High Court in case of Marut Nandan Overseas Ltd. v. S.K. Singhal, CCU (Del.) in support of his contention. He submits that M/s. Ashwamedh and M/s. Sky Lab has overstepped their duties. That the CRCL report merits to be accepted in holding that the goods are Hazardous waste. He also submits that as per letter of Dr. Rathore, the Appellant has filed applications before National Green Tribunal that the imported RPO are produced during the refining of lubricating oil base stock. Such aromatic extracts derived from the treatment of lubricating oils with certain selective solvents are covered by Ch Heading 27139000 and as such generated organic residues from Petrochemicals processes and refining are listed in the process generating hazardous wastes of Schedule I of Hazardous Waste (Management, handling and Transboundary Movement) Rule 2008 under column (3) at Sr. No. l (1.6). That in view of this submission the impugned order is liable to be confirmed. That since the past and present consignments were imported from same source they are one and same. They never disclosed the actual nature of goods by producing any analysis report from the supplier or the manufacturer which shows that they had attempted to conceal the actual nature of goods. Hence the demand is not time-barred.

10.  The Appellant in its rejoinder apart from ground of time bar also submitted that the conclusion drawn by two independent laboratories one appointed by the High Court and another at the instances of the revenue cannot be brushed aside. That M/s. Avon Food Lab Pvt. Ltd. nowhere in its report has stated as to how many PAHs were tested. That as pointed out by the Appellant there are hundreds of PAH but only a few as set out in class A of Schedule II of the said rules are below detection limit. That it is to be seen that the samples when tested whether the concentration of PAH exceeds 50 mg/Kg. Both the independent laboratories have held that the PAH content in respect of those PAH set out in Class A of Schedule II are below the limit.

11.  We have carefully considered the submissions made by both sides and perused the records. We find that the Appellants are regular importer of raw RPO. The consignments imported by the Appellants in the past were tested by the Customs authorities and the clearances were permitted. It is only after the communication by CRCL, Kandla that the testing method adopted by the testing agency M/s. Geochem for imported goods is not correct, the samples were drawn and were sent for chemical examination to CRCL, New Delhi. The report from the Chemical Examiner was relied upon to hold that the aromatic constituents are more than the non-aromatic constituents and that the goods are hazardous. The Appellants not agreed with the results of test report were requesting to adjudicating authority for chemical tests from any other recognized laboratory and cross-examination of Chemical Examiner. The adjudicating authority on the basis of CRCL, New Delhi confirmed the demands and passed order as above. Subsequently the Appellant during pendency of the present appeals before Tribunal has filed a writ petition before the Hon’ble High Court at Mumbai for retesting of samples by independent laboratory. In the proceedings before the Hon’ble High Court the facts came out that the goods were not tested by the CRCL, New Delhi itself but were got tested from M/s. Avon Food Labs (Pvt.) Ltd. said to be recognized by the Ministry of Environment & Forests. The Hon hie High Court agreed with the pleadings of the Appellant as to testing of goods from other approved laboratories and directed the sample to be tested by approved laboratory. The sample of goods on the direction of the Hon’ble High Court were got tested by M/s. Ashwamedh Engineers and Consultants, Nashik by the Customs authorities. Later the CRCL objected to report of M/s. Ashwamedh Eng. Terming it to be incomplete and inappropriate as the Laboratory did not report percentage of dry solid material (sediment) which is essentially required to decide mode of extraction while adopting “Toxicity Characteristics Leaching Procedure (TCLP) as per ASTM-D2533 - 92” and secondly that from the analysis methodology mentioned on page 5/9 of the report which has been followed for analysis of Polyaromatic Hydrocarbons (PAHs) it is evident that M/s. Ashwamedh has followed wrong mode of extraction and sample preparation. The samples were again got directed to be tested by the Tribunal from any other authorized lab in accordance with the Hazardous Waste (Management & Transboundary Movement) Rules, 2008. The samples were accordingly sent to M/s. Skylab Analytical laboratory who also reported that the samples are non hazardous.

12.  We have gone through the test report of M/s. Avon Food Labs and of CRCL, Delhi. We find that it was never brought on record by the revenue until the case before the Hon’ble High Court that the test was carried out by M/s. Avon Food Labs and not CRCL. From the test report dated 8-4-2013 of M/s. Avon Food Labs we find that the test method shown is USEPA - 8270C and the PAH content is shown as 356.14. There is no result of any other parameter checked by the said laboratory as regard viscosity or any other parameter. The report further says that the same cannot be used for advertising or as evidence in any court of law. Be it as the case may be, we find that when the samples were sent to a private laboratory, the test report should mention as to for what purpose the samples were tested. The revenue has contended that the tests was carried out in presence of chemical examiner. However there is no mention that the said tests were conducted in presence of chemical examiner who on the basis of test report has given test results. We find that at least seven to eight parameters have been shown in test result of the chemical examiner whereas the test report of M/s. Avon Labs on the basis of which such test result has been given by the chemical examiner does not contain report of any other parameter other than PAH. In such conditions the CRCLs test results cannot be accepted on its face value. Even the Hon’ble High Court was convinced by the prayers of the Appellant and thus held that the samples be tested by any other independent laboratory. It is only after the direction of the Hon’ble Court that the samples were sent to M/s. Ashwamedh Engineers & Consultants Co-op So. Ltd. who conducted test of the sample on 9 parameters as directed in letter dated 14-11-2014 issued by office of Commissioner of Customs (Import-II), New Customs House, Ballard Estate, Mumbai. The laboratory in its report concluded that the sample of RPO does not confirm to requirements of IS 15078 : 2001 (Reaffirmed 2012), Petroleum based Process Oils for Rubber Industry - Specifications with Kinematic Viscosity at 100°C. It further opined in its detailed report that the samples are non-hazardous. It was also mentioned in said report that the test has been performed as per ASTM - D5233-92 as mentioned in foot note (v) of the Schedule - II of the HWMHTMR Rules. The Hon’ble Court while disposing the Writ petitions permitted the Appellants to rely on said report in their case pending before Tribunal. The revenue again before Tribunal had objected to the said report on the ground that the laboratory has not reported percentage of dry solid material (sediment) which is required to decide mode of extraction while adopting “Toxicity Characteristics Leaching Procedure (TCLP) as per ASTM - D2533-92” and that analysis methodology has opted wrong mode of extraction and sample preparation procedure. The Tribunal once again on consent of both parties directed the sample to be tested by M/s. Sky Lab Analytical Laboratory, Kalyan, for testing the hazardous nature of the sample. Vide report dated 8-10-2015 M/s. Sky Lab Analytical Laboratory also reported that all RPO is non-hazardous with respect to PAH as per Schedule-II, Class A of the said rules. The said lab also checked the sample on 8 parameters as asked by the revenue and reported that the samples are non-hazardous. Thus both the labs have reported that the PAH contents are less than 50mg/kg and thus are non-hazaradous. We find that the test report of M/s. Ashwamedh is not only comprehensive on all parameters on which they were directed to carry out the test but also compliant with the test method. The report is as follows : Ref. AEC-CEO-20141120-4-HC-PZCQ7C Date 20-11-2014 To, Asst. Commissioner of Customs Oil Unit Office of the Commissioner of Customs (Import-II) New Custom House, Ballard Estate, Mumbai - 400001 Sub. :-  Report on Rubber Processing Oil. Reference - Letter Ref No. F.No. S/ 7-Gen-82/2013-14 Oil, dated 14-11-2014. In response to the subject mentioned above, office of the Commissioner of Customs (Import II), New Customs House, Ballard Estate, Mumbai-400001 sent a letter to Ashwamedh Engineers & Consultants Co-op. Soc. Ltd., under Ref No. F.No. S/7-Gen- 82/2013-14 oil, dated 14-11-2014. Mr. Rajesh Paradkar, Customs Inspector, (Cell 9867353927), Mr. Aproz Siddique, Customs Hawaldar, (Cell 9820674850) reached the laboratory along with sample on 14-11-2014 at about 16.30 hr. They were received by the Mrs. Ulka Belan, Laboratory Coordinator. The sample sealed in plastic bottle wrapped with white cloth, was handed over to Mrs. Ulka Belan. The following formalities of the laboratory were completed to acknowledge the receipt of sample : 1. Laboratory seal on the letter 2. The letter of contract review duly signed by the customer After the completion of formalities, they were taken round the laboratory by Mr. Vijay Thakare, Technical Manager, explaining the working of laboratory. The team left the laboratory around 17.30 hours. The sealed sample was kept in the laboratory under safe custody. The sample was processed on next day i.e. 15-11-2014. The sample seal was opened on 15-11-2014 by Mrs. Ulka Belan on 15-11-2014 in presence of Technical Manager, Mr. Vijay Thakare and handed over to the Technical Manager and Government Analyst Mr. Vijay Thakare for conducting the analysis of parameters mentioned. The laboratory formalities were completed by handing over the format No. QF/5.8/3 ‘Sample Analysis Request and Chain of Custody Record (ARC)’, duly signed by the Sample receipt in-charge and laboratory personnel. Total sample quantity in plastic bottle was quantified by knowing the bottle diameter, height of liquid in BOTTLE AND using formula. This turned out to be around 665 ml Parameters mentioned as per letter referred above were to be analyzed : Colour of Sample Ash Content Flush Point (COC) Density (gm/ml at 15°C) Kinematic Viscosity at 100°C Aniline Point Aromatic Content (% by mass) PAH (mg/kg) Test for Halogens Analysis Methodology : Analysis of Rubber Processing Oil has been earned out with a view of comparing the analytical values against the Requirements of Petroleum Based Oils for Rubber Industry, IS: 15078:2001 (Reaffirmed 2012), Type A, Aromatic in respect of parameters - Colour, Flash Point, Density, Kinematic Viscosity and Aniline Point. Analysis OF Polyaromatic Hydrocarbons has been carried out in know the WASTE CONSTITUENTS concentrations limits. As per Class-A of the Schedule-II of HWMHTMR, there are specific Polyaromatic Hydrocarbons - Napthalene, ANTHRACENE, Phenantrene, Chrysene, Benzo (A) anthracene, Fluoranthene, Benzo (A) pyrene, Benzo (K) fluoranthene, Indeno (1, 2, 3-cd) pyrene and Benzo (ghi) perylene with concentration limit of 50mg/kg. As such those are analysed. Halogens were analysed as per Schedule-13, Cla.ss-B of HWMHTMR. 1. Colour of the Sample : The sample was poured into a clean test tube, observed against the Northern light and the colour was reported. 2. Ash Content : Ash Content of oil was analysed as per IS: 1448 (Part 4): 1984, Reaffirmed 2007. The sample was contained in silica crucible, ignited, and allowed to burn until only ash and carbon remained. This residue was reduced to an ash by heating in a muffle furnace at 775°C, cooled and weighed. Ash content was calculated. 3. Flash Point : The flash point was estimated by using Cleveland Open Cup method as per IS:448 (Part 69) : 2013. In this method the test cup was filled with certified level with the sample under test. The temperature was increased gradually and at the specified, interval the small test flame was passed across the test cup. The lowest temperature at which application of the test flame causes vapour above the surface of the liquid to ignite was taken as flash point at ambient temperature. Correction taken for flash point, was applied considering barometric pressure in KPA. 4. Density : The test was carried out as per lS:1448 (Part 32) : 1992, Reaffirmed 2008. The density of liquid substance at given temperature is defined as the mass of the substance occupying unit volume at that temperature. While reporting, the units of mass volume used together with temperature used is stated. 5. Kinematic Viscosity at 100°C : The test is carried out as per IS : 1448 (Part 25) : 1976, Reaffirmed 2007. The method is carried out for petroleum products, by measuring the time for liquid to flow under gravity through a calibrated viscometer. 6. Aniline Point : The test is carried as per IS : M48 (Part 3) : 2007. It is the lowest temperature at which equal volumes of fresh aniline and oil are completely miscible. For this method, specified volume of aniline and sample are mixed mechanically, heated at controlled rate until two phases are completely miscible. The mixture is then cooled at controlled rate and the temperature at which the two phases separate is recorded as the aniline point. 7. Automatic Content (% by mass) : There are no limits in Hazardous Waste (Management Handling and Transboundary Movement) Rules, 2008 (HWMHTMR for short hereafter) for this specific ‘aromatic content parameter. ‘It appears under Class C8’ as Aromatic compounds other than those listed wider A12 to A18’. There seems to be no specification in Rubber Processing Oils standards for this parameter. Hence it was analysed by standard method Clay-gel ASTM D 2007-98 8. Poly aromatic Hydrocarbons (FAHs) : For determining the concentration of all the PAHs the Toxicity Characteristics Leaching Procedure (TCLP)’ as per ASTM-D5233-92 is adopted as mentioned in footnote (v) of Schedule-II of HWMHTMR. The analysis is done by using USEPA/SW846/8100 method. The sample is passed through the Chromatographic column using Dichloromethane, Hexane and Methanol separately. After this, sample is evaporated in rotary shaker. After evaporation, all the layers are RUN On Gas Chromatograph using Flame Ionization Detector, specified oven temperature programme and the specified column. 9. Teat for Halogens : This analysis is done by using USEPA/SW846/9253 method. Sample is prepared by Bomb Combustion Method USEPA/SW9253/ 5050. Sample is adjusted to pH 8.3 and titrated against Silver nitrate in presence of Potassium chromate as indicator. The end point is indicated by persistence of orange-Silver chromate colour. Summary of Parameters & Limits : The parameters along with limits and specifications are summarized as below :. Sr. No. Character-istic Requirements/ Limits Specification/Regulation 1. Colour Greenish brown oil IS 15078:2001 (Reaffirmed 2012), Type A, Aromatic 2. Ash Content - Not specified 3. Flash Point (COC) 218 C, nun IS 15078:2001 (Reaffirmed 2012), Type A, Aromatic 4. Density at 15C 0.98-1.01 g/ml IS 15078:2001 (Re affirmed 2012), Type A, Aromatic 5. Kinematic Viscosity at 100C 18.3-26.3 cSt IS 15078:2001 (Reaffirmed 2012), Type A, Aromatic 6. Aniline point, C 55, max IS 15078:2001 (Reaffirmed 2012), Type A, Aromatic 7. Aromatic Content (% by mass) - Not specified 8. Polyaromatic Hydrocarbons (PAHs) 50 mg/kg Schedule-II, Class-A of HWMHTMR 9. Halogens 5000 mg/kg Schedule-II, Class-D of HWMHTMR Analysis Results are as below : Sr. No. Parameter Results Limits Unit Method 1. Colour of the sample Greenish Brown Greenish Brown - Visual 2. Ash Content 0.006 - - IS 1448 (Part 4); 1984 3. Flash Point (C.OC) 251 218 min* C IS 1448 (Part 69) : 2013 4. Density at 15C 1.026 0.98-1.01* g/ml IS 1448 (Part 32) : 1992 5. Kinematic Viscosity at 100C 30.2 18.3-26.3 cSt IS 1448 (Part 25); 1976 6. Aniline Point 32 55 max C IS 1448 (Part 3) : 2007 7. Aromatic content 81.1 - % by maas Clay-gel ASTM D 2007-9B 8. Poly Aromatic Hydrocarbons (PAH) # BDL (DL:0.2) 50** mg/kg USEPA/SW 846/ 8100 9. Halogens # BDL (DL:50) 5000*** mg/kg USEPA/SW 846/ 9253 & 5050 NOTE : BDL Below Detection Limit, DL Detection Limit *As per IS 15078:2001 (Reaffirmed 2012), Petroleum based Process Oils for Rubber Industry - Specification. **As per Schedule-II, Class-A of HWMHTMR. ***As Schedule-II Class-B of HWMHTMR. #For determining the concentration of PAH and. Halogens, the Toxicity Characteristics Leaching Procedure (TCLP) as per ASTM-D5233-92 is adopted as mentioned in fact note (v) of Schedule-II of HWMHTMR. Analysis Results of Polyaromatic Hydrocarbons as per Class-A of the Schedule-11 of HWMHTMR as below : S. No. Parameter Results Limits Units Method Class Class A : Poly Aromatic Hydrocarbons (PAH) 50 USEPA/SW846/8100 A12 Napthalene BDL mg/kg A 13 Anthracene BDL mg/kg A 14 Phenantren BDL mg/kg A15 Chrysene BDL mg/kg Benzo (a) anthracene BDL mg/kg Fluoranthene BDL mg/kg Benzo (a) pyr-ene BDL mg/kg Benzo (K) flu-oranthene BDL mg/kg Indeno (1, 2, 3-cd) pyrene BDL mg/kg Benzo (ghi) perylene BDL mg/kg Detection Limit: 0.2 mg/kg BDL: Below Detection Limit Conclusion : 1. The Sample of Rubber Processing Oil does not conform to the requirements of the IS 15078:2001 (Reaffirmed 2012), Petroleum based Process Oils for Rubber Industry - Specifications with respect to Density at 15°C and Kinematic Viscosity at 100°C. 2. The sample of Rubber Processing Oil is non hazardous with respect to Polyaromatic Hydrocarbons (PAH) as per Schedule-II, Class-A of HWMHTMR and with respect to Halogens as per Schedule-II, Class-B of HWMHTMR. Date : 20th November, 2014 Place : Nashik Vijay Thakare Mrs. Aparna Pharande Govt. Analyst Chief Executive Officer & Govt. Analyst From the above it is absolutely clear that M/s. Ashwamedh for the purpose of determining the concentration of PAH and Halogens, the Toxicity Characteristics Leaching procedure (TCLP) as per ASTM- D5233-92 was adopted as mentioned in fact note (v) of Schedule - II of HWMHTMR. Further the notes contained all other details as required. This report has been issued as per the direction of the revenue and not the Appellant and therefore the non acceptance of the same on such unfounded grounds is not tenable. The objection raised by the CRCL is without any basis.

13. We also find that the Assistant Commissioner, Customs, Oil Unit had sought clarification from M/s. Ashwamedh on above objections raised by CRCL to which M/s. Ashwamedh Eng. replied as under : We are in receipt of your above referred letter. We hereby furnish the information as required by you as per point No. 7 of your letter. Sr. No. Information/documents required by Customs office Information/document provided by Ashwamedh Engineers & Consultants C.S.I, i. Whether percentage value of dry solid material (Sediment) of sample was determined or not? Yes, percentage value of dry solid material was determined by us as per ASTM D 5233-92 (2009) method Percentage value of Sediment was not required to be determined, as per the ASTM D 5233-92 (2009) method ii. If percentage value of dry solid material (Sediment) was determined then furnish authenticated documentary evidence of same and inform reason for non-inclusion of its value under Summary of Parameters & Limits (Page 6 of Analysis Report) and under Analysis Results (Page 7 of Analysis Report) The raw data for determination of percentage value of dry solid material is enclosed (Annexure-I) The percentage value of dry solid material was not included in the Analysis Report as your letter dated 14-11-2014 did not mention it as one of the test parameters. iii. Please provide copy of Annexure i.e. Scope of Accreditation of Chemical Testing issued by NABL along with Certificate No. T-1188 on 2-12-2012 and valid upto 1-12-2014 Copy of NABL Certificate No. T.1188 dated 2-12-2012 and valid upto 1-12-2014 along with Scope for Used/Waste Oil which includes Poly Aromatic Hydrocarbons (PAH) is enclosed (Annexure-2). As per point No. r(iv) of your letter, we would like to clarify that the method opted for extraction and sample preparation procedure were correct. Extraction was done as per the requirement of Schedule-II of Hazardous Wastes (Management, Handling & Transboundary Movement) Rules 2008 (HWMHR), foot note (v) which mentions “For determining the concentration of the hazardous constituents in the waste “Toxicity Characteristics Leaching Procedure (TCLT)” as per ASTM-DS5233-92 should be adopted”. Further the extracted sample was given clean-up as per methods USEPA 3650 followed by US EPA 361 IB. Hence the final extracts were in Dichloromethane Hexane and Methanol. As per point No. 5 of your letter, we would like to clarify that our Laboratory is accredited by NABL for Testing of PAH content in Used/Waste Oil. We would like to bring to your notice that we were primarily sent this Rubber Processing Oil (RPO) sample for testing on the basis that we are recognized by Ministry of Environment, Forests & Climate Change (MoEFCC) Along with the reply M/s. Ashwarnedh also sent copy of “In progress test data and calculations sheet”. We find that in view of such reply of M/s. Ashwamedh Eng. & Cons. CSL it leaves no scope for any doubt over the test report and results issued by them. We also note the fact as pointed out by the counsel for the Appellant even the CRCL test result dated 30-1-2013 shows the sediment as “Nil”. Again the CRCL’s test result dated 1-2-2013 shows the sediment as “Nil”. In such case it is likely that even report of Aswamedh will show Sediment parameter as “Nil” being accepted fact in CRCL report. Further from the communication of M/s. Ashwamedh it is therefore obvious that the revenue during the testing by M/s. Ashwamedh Engineers, the Assistant Commissioner, Oil Unit did not ask M/s. Ashwamedh to check the sedimentary percentage as apparent from the letter dated 14-11-2014 to M/s. Ashwamedh. Therefore the objection at later stage for checking of said parameter is therefore void and not tenable. As regard contention of CRCL that the mode of extraction while adopting “Toxicity Characteristics Leaching Procedure (TCLP) as per ASTM - D2533-92” and that analysis methodology has opted wrong mode of extraction and sample preparation procedure, we find that the contention of CRCL is incorrect as it is apparent that the said procedure was adopted by them.

14.  Further whereas the test report of M/s. Avon has given the PAH content only and no other parameter and the test results on basis of said report and opinion has been given by chemical examiner. It is not known as to what methodology was adopted to arrive at test result. It is not known as to how the test result has been given on the basis of a single parameter of M/s. Avon’s test report. In contrast the report dated 20-11-2014 of M/s. Ashwamedh is a detailed report addressed to the Assistant Commissioner of Customs Oil Unit, New Customs House. The said report has given analysis of 9 parameters viz. Colour of Sample, Ash Content, Flashpoint (COC), Density, Kinematic Viscosity at 100°C, Aniline Point, Aromatic Content, (% by mass), PAH (mg/kg) and Test for Halogens. The report further clearly states that Analysis of RPO has been carried out with a view of comparing the analytical values against the requirements of Petroleum based Oils for Rubber Industry, IS : 15078:2001 (Reaffirmed 2012), Type A, Aromatic in respect of parameters - Colour, Flash Point, Density, Kinematic Viscosity and Aniline Point. It is thus obvious that the test was done as per the requirement and if the report does not contain the sedimentary parameter the same cannot be a ground to brush aside the report of M/s. Aswamedh Engineers. It is more so in the light of the fact that the CRCL test results and Test report of M/s. Avon Foods is highly doubtful and cannot be accepted on its face. It is merely a one page report of M/s. Avon containing one parameters of PAH without any comment. The report of M/s. Avon Foods and CRCL is as under :

16.  We thus find that the report of M/s. Avon Foods and CRCL cannot be taken as basis to hold impugned goods as hazardous or not of accepted levels. Also at no point of time it was revealed that the test was conducted not by CRCL but by M/s. Avon. The test report is of Avon Labs whereas the test result has been given by chemical examiner. It is only at the later stage before the Tribunal after disposal of the Petition by the Hon’ble High Court that the Director CRCL stated that the samples were analysed in the presence of Chemical examiner at M/s. Avon Food Labs. If M/s. Avon Food Labs were given samples for testing, in that case the test report should have contained all the parameters and test result of that LAB should have been on record and not of the chemical examiner. Even the test results has been given in its test report by M/s. Avon Food Labs but on basis of said report a detailed further test result has been given by the chemical examiner. We also find that M/s. Ashwamedh Engineers are accredited by the NABL (National Accredition Board for Testing and Calibaration Laboratories) for chemical testing in the field of chemical, biological, electrical, fluid-flow and numerous other tests. The chemical testing includes testing of PAH contents in petroleum products. Hence the said lab has been recommended by Ministry of Environment and Forests for testing of RPO sample is also accredited for “Chemical & Biological testing vis a vis ‘testing of PAH contents in petroleum products by NABL. The copy of accredition certificate No. T-1188 of NABL given to M/s. Ashwamedh Engineers which has been further extended by letter dated 22-12-2014 is already part of documents before us. This clearly shows that M/s. Ashwamedh Engineers is accredited for all tests. It is also observed that even the Ministry of Environment & Forests has recognized M/s. Ashwamedh Engineers as approved/authorized laboratory for testing. Further at the time of sending of goods to M/s. Ashwamedh Engineers no objection was raised by the revenue before Hon’ble High Court. It is found that report given by M/s. Ashwamedh is not only a detailed report but also states the analysis method i.e IS: 15078:2001 (Reaffirmed 2012) containing detailed note on analysis of PAH and other parameters referred to it. Obviously there is no place of any doubt on such report which has been given on the basis of the direction of the Hon’ble High Court. Thus in view of High Court’s above observation we find that the test report of M/s. Ashwamedh engineers being fully compliant with the rules and procedures of Hazardous Waste (Management Handling and Transboundary Movement) Rules, 2008 (HWMHTMR rules) is reliable and the objections raised by the revenue does not hold any substance. It is also seen that it is only after the receipt of the report by M/s. Ashwamedh Engineers that the CRCL objected not only to the test report but even the eligibility which is not correct. Once the laboratory is accredited to such test and secondly they have tested the parameters as asked by the revenue, the objection raised by the revenue, which are even not sustainable in view of our observations, are not correct.

17.  Further we are of the view that once the Hon’ble High Court had directed the sample to be tested by M/s. Ashwamedh, the objections of the CRCL does not carry much weight. We also find that in terms of Circular No. 9/2009- Customs, dated 23-2-2009 the Ministry of Environment & Forest has recognized laboratories for the purpose of testing of samples and the assistance of the same may be utilized in testing the samples of Hazardous waste. Once M/s. Ashwamedh Engineers are recognized by the MoEF as found above for the testing of samples the CRCL cannot comment upon the same.

18.  The report of second lab M/s. Skylab Analytical laboratory from whom the goods were got tested by the revenue after direction of the Tribunal is also on record. M/s. Skylab is an accredited laboratory from National Accredition Boraci for Testing & Calibaration Laboratories. The said lab has also reported the analysis on 8 parameters referred by the revenue. It has been reported by M/s. Sky Lab in its report dated 8-10-2015 that the PAH contents are below 50mg/Kg and thus RPO is non-hazardous with respect to PAH as per Schedule-II, Class A of the said rules. The said report is also not in doubt. We do not see any reason, why department proposed to reject both the reports i.e Reports given by M/s. Ashwamedh and M/s. Skylab Analytical. Therefore on the basis of both the said test reports, the goods are neither restricted nor hazardous.

19.  We find that once the report of chemical examiner has been doubted and the goods has been ordered to be re-tested, no reliance can be placed upon the said test report of chemical examiner. In case of M/s. Opel Trade Corporation v. Commr. of Cus. (PREV.), Kolkata (Cal.), the Hon’ble High Court on retesting of samples as ordered held that the goods were found fit for human consumption and the show cause notice on basis of earlier test report was set aside. Further in case of Commr. of Cus. (Exports), Chennai-I v. Texworth International (Mad.), the Hon’ble High Court held that once the Department had agreed to a second test report without reserving any right to rely upon the first test report, it is not open to the Department to contend that the second test report ought to be dumped. We find that the revenue had agreed on retest of samples by M/s. Aswamedh and M/s. Skylab and the tests were conducted on parameters as asked for by the revenue itself. In such case there is no reason to doubt the said test reports of both these labs. Thus in view of the two test reports i.e one of M/s. Ashwamedh Eng. and second of M/s. Skylab Analytical we have no hesitation in holding that the goods are non-hazardous in nature and are not restricted goods.

20.  In view of our above observations and findings we hold that the goods being non-hazardous and the PAH being in the accepted levels are eligible for importation and the impugned order is not sustainable.

21.  The next issue to be decided in the present appeals is whether the goods are classifiable under Chapter sub-heading 2707 9900 as canvassed by the revenue or 2710 1960 as canvassed by the Appellants or under 2713 9000 as alternatively pleaded by the Appellants. We find that goods were purported to be classified under Chapter sub-heading 2707 9900 by the revenue on the ground that Rubber Process Oil (RPO) which meets the requirements stipulated in the Chapter Note 2 of Chapter 27 would remain appropriately classifiable under sub-heading 2710 and that in case where the weight or aromatic constituent exceeds that of non-aromatic constituents then such product would appear more appropriately classifiable under 2707 subject to meeting the requirements. The Chapter Note 2 of Chapter 27 read as under : Reference in heading 2710 to “petroleum oils and oils obtained from bituminous minerals” include not only petroleum oils and oils obtained from bituminous minerals but also similar oils, as well as those consisting mainly of mixed un-saturated hydrocarbons, obtained by any process, provided that the weight of the non-aromatic constituents exceeds that of the aromatic constituents. However, the references do not include liquid synthetic polylefins of which less than 60% by volume distills at 3000C, after conversion to 1013 millibars when a reduced- pressure distillation method is used.

22.  The revenue has sought classification under 2707 on the ground that as the aromatic constituents exceeds the non-aromatic constituents hence the goods will fall under Chapter sub-heading 2707. As far as issue of classification under Chapter sub-heading 2713 is concerned we find that raw RPO is being imported and is blended with various solvents to manufacture finished RPO for use by rubber industry which would meet the BIS Specifications laid down in BIS : 15078 : 2001 in terms of viscosity and density. The imported raw RPO is manufactured from Vacuum Gas Oil which is raw material for lubricating refineries. When it is cracked at high temperature and treated with solvents vaiious types of lubricating oil are obtained and the remaining extracts are derived from the treatment of lubricating oil with selected solvents. These residues or extracts are not similar to those oils as listed in 27.07 namely benzol (benzene), toluol (toluene) xylol (xylenes), solvent naptha, naphthalene oils and crude naphthalene, anthracene oils and crude anthracene, phenolic oils (phenols, cresols, xylenols etc), pyridine, quinolone and acridine basis and creosote oils. Unless it is similar oil, the raw RPO would not merit classification under Chapter sub-heading 27.07. Being “other residues of petroleum oils or of oils obtained from bituminous materials” will merit classification under Chapter Heading 2713. The classification of RPO under chapter heading 2713.39/2713.30 was recommended by the Deputy Chief Chemist and same was accepted by C.B.E. & C. in its circular No. 11/1989, dated 13-2-1989. We also find that the CRCL in its communication dated 23-8-2013 has also stated that RPO are mainly aromatic extracts which are produced during the refining of lubricating oil base stocks and that such aromatic extracts derived from treatment of lubricating oils with certain selected solvents are covered by heading 2713 9000. The Chapter sub-heading 27.13 covers Petroleum Coke, petroleum bitumen and other residues of petroleum oils or of oils obtained from bituminous minerals. The imported goods RPO cannot be classified under Chapter sub-heading 27.07 as it is not applicable to residues of petroleum oils or of oils obtained from bituminous minerals. Further even as per the HSN Explanatory Notes to said chapter the correct classification would be under Chapter sub-heading 271390 00. The more specific tariff heading is ought to be assigned to the goods in case if two headings are equally applicable. We therefore hold that the raw RPO imported by the Appellants would merit classification under chapter heading 2713.90 and would be liable to duty accordingly.

23.  The demands against the Appellants have also been raised by invoking extended period of limitation in respect of previous imports. We find that during the course of earlier imports also the samples were drawn by the Customs Authorities and were sent for testing. The aromatic contents were found to be less than 50% by weight and the goods were allowed to be cleared. In such view of facts it cannot be said that the Appellants have suppressed any facts from department. Further we find from the bill of entry for home clearances that there is no mention of any provisional assessment of the same which shows that the Bills of Entry were finally assessed. From the detailed discussions made hereinabove, it can be seen that the issue involved is grave interpretation of law that whether goods in question is hazardous or otherwise and also involved issue on classification. The outcome of the case is based on strict laboratory tests of various agencies, hence it cannot be expected from the appellants that they know the nature of imported goods, accordingly, the impression of facts cannot be attributed to the appellants. We are therefore of the view that the demands are also hit by limitation of time and the demands raised by invoking extended period of limitation are not sustainable.

24.  In view of our above findings we set aside the confiscation of goods, duty demand and penalties imposed. We hold that the impugned goods be classifiable under Chapter sub-heading 27139000 and the same shall be assessed accordingly. The demands made against the Appellants by invoking extended period of time are also not sustainable in view of our above observation and findings.

25.  All the appeals are allowed with consequential reliefs, if any, in accordance with law.

Equivalent .