2004(07)LCX0120

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri S.S. Sekhon, Member (T) and T. Anjaneyulu, Member (J)

COMMISSIONER OF CUSTOMS, KANDLA

Versus

DANI EXPORTS LTD.

Order No. A/816/2004-WZB/C-III, dated 14-7-2004 in Appeal No. C/792/R/99

CASES CITED

Collector v. Kamal Traders — 1986(01)LCX0047 Eq 1986 (024) ELT 0702 (Tribunal) — Distinguished................... [Paras 1, 3]

Collector v. Mayur Chemicals — 1997 (095) ELT A073 (S.C.) — Distinguished...................... [Paras 1, 3]

REPRESENTED BY :        Shri Uma Shankar, SDR, for the Appellant.

Shri U.S. Namkani, Advocate, for the Respondent.

[Order per : S.S Sekhon, Member (T)]. - Revenue is in appeal against the decision of the Commissioner (Appeals) in arriving at clarification of Dodecyl Benzene (Commercial) under Tariff Heading 2902. Revenue seeks the classification under Heading 3817.00 of the Customs Tariff relying upon decision reported in 1997 (095) ELT A73, wherein appeal filed by Mayur Chemicals was dismissed and the Tribunal’s findings of Dodecyl Benzene to be covered under Chapter 38 and not 27 was upheld. They also rely upon decision in case of Kamal Traders reported in 1986 (024) ELT 702.

2. Before proceeding to determine the classification of an entity, it is required to first determine as to what the entity in it’s entirety is. Proceeding to decide that, in this case, entity described in the Import documentation is Dodecyl Benzene (Commercial), it is found that I.I.T., Mumbai test result, as per grounds of appeal reveal it to be -

Date : March 27th, 1998

To

The Assistant Commissioner of Customs

Customs House (Gr . VII)

Kandla, Kutchch .

Sub : Test of Branched Dodecyl Benzene

                   File No. S/26-02/98-Appg.II B.E. No. f. 281/8-1-98

Sir,

The sealed sample of liquid bottle with the above number sent by you has been analyzed in this laboratory and the test results are as follows :

Conclusions :

1.  Physical properties indicates it is Dodecyl Benzene (commercial) .

2. Boiling point range and close retention peaks in GC indicate it is various isomers of Branched Dodecyl Benzene.

3. Reduced pressure distillation fraction purity of all branched

Dodecyl Benzene is 95.5%.

If any queries, please feel free to contact me.

Thanking you.

Yours Sincerely,

Sd/-

(Dr. M.V. Pandya)

This test report confirms that the entity is 95.5% pure Dodecyl Benzene along with various isomers of Dodecyl Benzene.

3. (a) The entity is a mixture of Isomers of Dodecyl Benzene is not in doubt. The stipulation of the Tribunal, in the case of Kamal Traders - 1986(01)LCX0047 Eq 1986 (024) ELT 0702 (Tribunal), that Dodecyl Benzene under import is always and is mixture of different Alkyl Benzene, in their case, is not applicable, as it is not supported by the test reports from IIT, Mumbai relied upon. It is a mixture of “Isomers”. and not a mixture of different Alkyl Benzenes. Since Isomers of an organic compound present will not lead to a necessary conclusion that the entity is a mixture of Alkyl Bezenes of different molecular weights and formulas. ‘Isomer’ as per the understanding of the word, in Organic Chemistry would be compounds with same molecular structure with different spatial configurations.

(b) Examining the notes of HSN under 27.07 they exclude Alkyl Benzens or mixed cells/napthalene obtained by alkylation of benzene or naphthalene and have fairly long side chains. They would fall under 38.17. However, the notes under 38.17 reads as :-

  “This heading covers mixed Alkyl Benzenes and mixed Alkylnapthalene obtained by alkylation of benzene and naphthalene. They have fairly long side chains and are not of the kind mentioned in the second part of the text of heading 27.07. Mixed Alkyl benzenes are used, inter alia, as solvents in the manufacture of surface active agents, lubricants and insulating oils. Mixed Alkyl are mainly used for the manufacture of Alkyl naphtalene Sulphuric acids and their salts.

“The heading excludes mixtures of isomers of heading 29.02“ p. 516 of HSN (1996 ed.)

(Underline supplied)

Thus an Alkyl Benzene, which is mixture of its own Isomers and not of two or more Alkyl Benzenes with different lengths of Alkyl side chains attached to Benzens, would be excluded & not covered under Headings 2707 or & 38.17.

Exclusion clause stipulations of H.S.N. Heading notes cannot be ignored and have to be applied. The note emphasised here limits the word mixed ‘Alkyl Benzens’ in the inclusion note. The word “mixed” implies a desired, targeted mixture or preparation deliberately effected of two or more different solitary molecule of Alkyl molecules. Benzens with Isomers, arising in and during manufacture of an organic compound manufacturer during its preparation would more appropriately be covered under Chapter 29. Chapter notes of Chapter 29 grounds for and stipulates under 1(b) that mixtures of two or more isomers of same organic compound would cover, the entity herein, under Chapter 29. The percentage purity of 95.5% would rule out the classification from Chapter 27 and place the entity under Chapter 29. Entity is an uncontestedly Benzene with side chain. It is 95%, or more pure unmixed. It would approximately fall under 2902.

(c) There is force in the arguments that the decision relied upon by Revenue i.e. Mayur Chemicals & Kamal Traders were decision under the earlier Tariff. Sans considering the exclusion clause of Heading 38.17. They would thus be not applicable. No reasons are found in Revenue Appeal to upset the order of Commissioner (Appeals) arrived based on correct analysis.

(f) In view of the findings, Commissioner (Appeals) is confirmed.

(f) The entity is classified under 29.02.

(f) Revenue appeal is dismissed.

________

Equivalent 2004 (173) ELT 36 (Tri. - Mumbai)