2001(10)LCX0209

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri J.H. Joglekar, Member (T) and G.N. Srinivasan, Member (J)

DEEPAK FERTILISERS & PETROCHEMICALS CORP. LTD.

Versus

CC, NHAVA SHEVA

Order No. 2531/2001-WZB/C-II, dated 8-10-2001 in Appeal No. C/484-R/95-Mum.

Advocated By :   Shri V. Sridharan, Advocate, for the Appellant.

Shri Karnail Singh, SDR, for the Respondent.

[Order per : J.H. Joglekar, Member (T)]. - The appellants imported “brimstone 90” (agriculture sulphur) and claimed classification under heading 25.03 and benefit of Notification No. 11/97-Cus., dated 1-3-1997 at serial No. 19. The Assistant Commissioner in his order accepted the classification but denied the benefit of the notification. In doing so he interpreted the words “crude and unrefined sulphur” occurring in the said entry as meaning that such sulphur should not have undergone any chemical process at all. He observed that the contested goods were a product manufactured by mixing clay to molten sulphur. It was his belief that such processed product could not be termed as “crude or unrefined”. The importers then filed an appeal. The Commissioner (Appeals) read the literature of the manufacturer and held that the crude sulphur went through the process of heating, mixing, filtration and other processes and upheld the lower order. Hence the appeal.

2. The short point thus for consideration is whether the contested goods merit benefit of the relevant entry of the Notification which reads as under :

3. There is no dispute that the goods are covered under heading 25.03 which reads as under :

“Sulphur of all kinds, other than sub-limed sulphur, precipitated sulphur and colloidal sulphur”.

4. Both the lower authorities have held that the phrase crude or unrefined would apply only to the sulphur which is mined and not subjected to any of the other processes. The description in the tariff entry is capable of covering refined as well as unrefined sulphur. Sub-notes to the tariff entry in the HSN prescribe the scope of the goods falling thereunder. The relevant part is reproduced below :

“(4) Unrefined sulphurs recovered as by-products in the purification of coal gas, by the scrubbing of sulphurous furnace gases, from sour, natural gas and from the refining of sour crude mineral oils, etc. These recovered sulphurs, sometimes referred to as “purified sulphur“ or “precipitated sulphur”, must not be confused with the precipitated sulphur defined in the Explanatory Note to heading 28.02.”

5. The Assistant Commissioner had relied upon the origin of the sulphur from which the contested product is manufactured. The literature shows that the liquid sulphur is brought from Aramco refinery. This liquid sulphur is mixed with powdered bentonite at the ratio of 9 : 1.

6. Shri Sridharan, the learned counsel submitted that the refinery was engaged in refining petrochemicals from which the liquid sulphur was obtained as a by-product from sour natural gas. In terms of the sub-note (4) referred to above he claimed that this sulphur at the molten stage was unrefined. On examination of the literature and the HSN sub-notes we find that this claim has merit.

7. Whether the unrefined nature of the sulphur would be taken away by blending it with the bentonite clay is the next question that is to be decided.

8. Elemental sulphur has wide use as a fertiliser. Elemental sulphur has to be oxidised to sulphate before it can be absorbed by the plant. The rate of oxidisation depends upon the surface area of the sulphur particles. Rapid oxidisation is possible where the particle size is small. The fine particles, however, create handling problems. They provide irritation to the eyes and lungs. They can also be blown away by wind. They may float on the irrigation water. To enable the sulphur to be applied in a safe manner it is mixed with other fertilisers such as phosphate, etc., or with inert fillers such as bentonite clay. Such mixture is applied to the plants. On application of water bentonite expands and disintegrates the sulphur particles surrounding it. Over the years 10% bentonite in the mixture has been established as appropriate.

9. The addition of bentonite clay does not alter the chemical properties of the sulphur particles. Therefore even in admixture of the bentonite the sulphur does not merit classification under any other tariff entry. The sulphur component of such mixture also continues to fall under the term ‘unrefined sulphur’. Therefore such unrefined sulphur tracing its origin in refinery processing natural gas, etc. of which it is a by-product would continue to merit the title ‘unrefined sulphur’ with or without mixture with bentonite.

10. The report of the chemical examination conducted by the SGS indicate the existence of 10% inert filler. The same is the finding of the National Establishment for Agricultural and Industrial Sulphur at Dammam. We thus find that the contested goods would merit benefit under the relevant entry of the cited notification.

11. The appeal thus succeeds and is allowed with consequential releif.

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Equivalent 2002 (139) ELT 0328 (Tri. - Mumbai)