2008(08)LCX0032
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH, MUMBAI
M.V. Ravindran, Member (Judicial) and K.K. Agarwal, Member (Technical)
Varsha Dental Products (P) Ltd.
Versus
Commissioner of Customs (ACC), Mumbai
Order No. A/447/08/CSTB/C-II decided on 04.08.2008 in Customs Appeal No. C/105/08-MUM.
Advocated By -
N.D. George, Adv. For Appellant
L.K. Lal, SDR For Respondent
[Order Per : K.K.Agarwal, Member (T)].-
K.K. Agarwal, Member (Technical)
1. Brief facts of the case are that the Appellants M/s. Varsha Dental Products (P) Ltd. imported a consignment of non-precious ceramic bonding Nickel - Chrome casting alloy for dental use and filed Bill of Entry claiming classification under Chapter Heading 75022030. This classification was not agreed to, by the assessing group. According to it the goods were classifiable under Chapter Heading 8311900 which was also not agreed to by the original adjudicating Authority who classified the goods under Chapter Heading 30064000 as dental cements and other dental fillings. The matter was taken up in appeal before Commissioner (Appeals), who upheld the classification arrived at by original Authority under Chapter Heading 30064000.
2. Learned Advocate for the Appellant submitted that there is no dispute that the product under reference is non-precious ceramic bonding Nickel-Chrome casting alloy for dental use. Chapter 75 deals with Nickel and articles thereof. They agreed that the goods may not be classifiable under 75022030 as it deals with un-wrought nickel, but the same will be classifiable under Chapter Heading 75089090 as other articles of nickel and nickel alloy. By no stretch of imagination, it can be considered as a dental cement and other dental filling as these materials are never used for filling, but are used for preparing tooth structures, called crowns, partial bridges or casted partial dentures for final use in human mouth as a replacement of natural teeth. There is no use for pharmaceutical purposes as has been concluded by the adjudicating Authority and therefore the same cannot be classified under Chapter Heading 30064000.
3. Learned DR however submits that the products cannot be classified under Chapter Heading 75089090, which covers other article of Nickel and Nickel Alloy. According to Sub-heading Note 1(a) of Chapter 75 'Nickel not alloyed' is defined as metal containing by weight at least 99 per cent of nickel plus cobalt, provided that the cobalt content by weight does not exceed 1.5 per cent and 'nickel alloy' is defined in sub-heading Note 1(b) which reads as under:
1. (b) Nickel alloys -
Metallic substances in which nickel predominates by weight over each of the other elements provided that:
(i) The content by weight of cobalt exceeds 1.5 per cent
(ii) The content by weight of at least one of the other elements is greater than the limit specified in the foregoing table, or
(iii) The total content by weight of elements other than nickel plus Cobalt exceeds 1 per cent.
Since the products under dispute consists of 75 per cent nickel, 14 per cent chrome, 7.5 per cent Molybdenum, Aluminum 2 per cent, Beryllium 1.8 per cent, Titanium 1 per cent, Silicon 1 per cent it does not meet the parameters prescribed for the material to be called either as nickel or nickel alloy as cobalt content is totally missing. Since the product is more akin to dental filling, it is rightly classifiable under Chapter Heading 30064000.
4. We have considered the submissions.
5. We find the product in question does not meet the description under Chapter Heading 30064000 which relates to dental cement and other dental filling. This product is neither dental cement nor other dental filling as description itself says that the product is nickel chrome casting alloy. It is used for the purpose of making crowns, partial bridges etc. which are not in the nature of filling. We also see that the product cannot be considered as article of nickel or nickel alloy as content of nickel is less than 99 per cent and the cobalt is totally missing which is essential constituent for alloy to be called nickel alloy. However, Rule 3(a) of Rules of Interpretation provides that the heading which provides the most specific description shall be preferred to headings providing more general description. Since in this case the item is essentially alloy, Chapter Heading 75089090 is to be considered as more specific. Even otherwise Rule 3(c) states that if the goods cannot be classified by reference to (a) or (b) they shall be classified under the heading which occurs last in numerical Order among those which equally merit consideration. Since in the present case Heading 75089090 is last in numerical Order, goods will be classifiable under Chapter Heading 75089090^which covers other article of Nickel and Nickel Alloy.
6. In view of above we allow the appeal holding that the goods will be classifiable under Chapter Heading 75089090 and set aside the Order of Commissioner (Appeals).
(Pronounced in open Court on..............)
Equivalent 2008 (133) ECC 0133
Equivalent 2008 (159) ECR 0133 (Tri.-Mumbai)
Equivalent 2008 (089 RLT 0645 (Cestat - Mum.)