Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Central Excise vs Reliance Silicon (I) Ltd. on 27 August, 2004
Equivalent citations: 2004(174)ELT77(TRI-MUMBAI)
ORDER S.S. Sekhon, Member (T)
1. Revenue is aggrieved by the order of the CCE (Appeals) having classified -
i) Condom lubricants.
ii) Surface Active Antiform Compound under 2710.90 and 3402,90 by the Commissioner (Appeals). Revenue wants the classification under heading 3910.00.
2 a) Before proceeding to classify an entity, it is necessary to first establish what the entity is proceeding on the basis of material on record, it is found-
i) Condom Lubricants are as per test report of the chemical examiner.
Sample is in the form of clear liquid. It is preparation consisting of mixtures of polyorganics silicone compounds siloxanes and silanols. It is not silicone in primary form.
ii) Surface Active Antiform compound the chemist has reported " It is the form of white antiform compound -- liquid. It is a preparation containing siloxanes, silanols, silica and other additives. It is not a silicone in primary form. It is not an OSAA or its preparation.
b) The use of the entities is as a lubricant treatment compound in manufacture of latex condoms & in textile fabrics etc.
c) Chief chemists test reports also certify the entitles to & as not petroleum based products or & as not an OSA. Therefore classification under 2710.90 for condom lubricants & 3402.90 as OSA, for Surface Active Antiform compounds cannot be upheld.
d) As regards the classification under chapter 39 even if they satisfy note 6 of chapter 39, there is no material, that they satisfy the definition of "plastic " as per note 1 to chapter 39 & since they are not silicon is primary form as per test reports they cannot be classified under heading 3910 cannot be upheld.
e) The entities are preparation of the chemical industry and would appear to merit classification under chapter 34/03 of the Central Excise Tariff Act 1985, as Lubricants preparation keeping the HSN notes in view.
2) Since, the classification under 3405 has not been considered by the lower authorities & or the respondents had no occasion to consider classification under 3403. The orders of lower authorities are set aside & the matter remitted back to re-determine classification & duty demands thereafter, as permissible under law.
3) Appeal allowed as Remand to original authorities.
(Pronounced in Court on)