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6. The learned Senior Counsel, Shri Hidayatullah for the Appellants along with learned Counsel, Shri Arun Mehta submitted that the product Insan-LE fully satisfies the criterion under Heading 2710.21 as an Aviation Turbine Fuel with reference to the smoke point and final boiling point prescribed therein for the product as revealed from the test report of the product. The learned Senior Counsel urged that in that heading there is no end use criterion regarding suitability for use as in the case of Tariff Heading 27.10 relating to Motor Spirit. The learned Senior Counsel pointed out that even under the old CET the Insan-LE had been classified by the department under Item 68 [of] CET and not under Item 6 [of] CET which covers Motor Spirit. The learned Senior Counsel relied upon the Tribunal decision in the case of Cellulose Products of India v. Collector - 1996 (82) E.L.T. 147 to say that in respect of Motor Spirit with the suitability criterion prescribed in the Tariff, the department has to show that the product is actually, practically and commercially fit for such use. The learned Senior Counsel referred to the test report of the department's laboratories wherein the Chemical Examiner has reported that the Laboratory does not have the facility to test suitability of use as fuel in internal combustion engine. The learned Senior Counsel pointed out that the department is relying upon the test results given by Shri J.R. Nanda, Chief Research Manager of the Indian Oil Corporation, Faridabad wherein it has been certified that Insan-LE has Result Octane No. 82.2 which is close to the 83 RON gasoline marketed earlier and that it can be used as fuel with suitable blending to raise Octane Number. The learned Senior Counsel contended that even this certificate does not show that it is actually being used as fuel. Shri Nanda was also not offered for cross-examination by the Appellants. In this context the learned Senior Counsel referred to their correspondence with the Indian Oil Corporation whereby letter dated 22-4-1994 the IOC had said regarding the use of certain return streams from the Appellants works for blending into finished petroleum products and wherein the IOC has stated that after studying the characteristics of the return streams Insan-LE it was found that the same are not suitable for blending into any of their finished product. The learned Senior Counsel contended that this itself will show that the Insan-LE is not suitable for use as fuel in spark ignition engines. The learned Senior Counsel also pointed out that the department has not carried out any test regarding corrosion factor. This was an admitted position emerging from the cross-examination of the Chemical Examiner.

- Kerosene (which is ordinarily used as an illuminant in oil burning lamps) and aviation turbine fuel, that is to say, any hydrocarbon (oil excluding mineral colza turpentine substitute) which has a smoke point of eighteen millimeters or more and has a final boiling point not exceeding 300°C:

2710.2 - Aviation turbine fuel."

The characteristics that the 'Motor Spirit' should satisfy for being classified as 'Motor Spirit' will be that it should be a Hydrocarbon oil and it should have a flash point below 27°C and it should have either by itself or admixture with any other substance suitable for use as fuel for internal combustion engines/in spark ignition engines. The question of interpreting the expression 'suitable for use' as above in the old CET as well as in CETA had come up for consideration in the Tribunal decision in the case of Cellulose Products supra. The Tribunal has held that the meaning of the expression 'suitable' and 'suitable for use' as interpreted by the Courts in judicial pronouncements as well as the definition in Black's Law Dictionary and from another text called "Words and Phrases Legally Defined" by Butterworth it was found that the term suitable has been judicially determined to mean 'actually, practically and commercially fit for the use described. For an item to be suitable for a particular purpose within the meaning of Tariff Act the merchandise need not be chiefly used for stated purposes but there must be evidence of more than a casual, incidental, exceptional or possible use, the use must be substantial. The Tribunal found that in a U.S. Customs case it was held that 'suitable for use' as used in determining Classification of a product for Customs purposes meant actually, practically ' and commercially fit for such use and not casual, incidental or possible uses. Reliance was also placed by the Tribunal in that case on the judgment of the Alllahabad High Court in Central Distillery & Chemical Works v. Inspector -1978 (2) E.L.T. 194 wherein it was held that all kinds of ethyl alcohol will not be power alcohol i.e. to say 'Motor Spirit' within Item 6 [of] CET unelss it was also established that it is suitable for operating or running Internal combustion engines. It was observed by the High Court that the governing factor of the definition is that the product of the manufacturing process undertaken by the. Petitioner would be suitable for running internal combustion engines. It is only then it can be covered by the definition of 'Motor Spirit'.

13. In the light of the above, relating to interpretation of the Tariff which contains a criterion of suitability for use as fuel for spark ignitiorf engines, the classification of Insan-LE has to be examined with regard to determination whether its classification under 2710.19 as 'Motor Spirit' will be justified. The main reliance has been placed by the department on the opirtic given by the Research Centre of Indian Oil Corporation in their communicatioq dated 25-7-1988 to the department. The Indian Oil Corporation Chief Research Manager, Shri J.R. Nanda has informed that the sample of Insan-LE has beerj evaluated at the Centre and his report is enclosed to that communication! wherein it has been found that the product basically comprises a mixture of Hydrocarbon and non-hydrocarbon materials was present in traces only and that "the product can be used as a fuel for spark ignition engines. The Research-Octane Number as tested is 82.2. This is quite close to the 83 RON gasoline marketed earlier. However, in order to meet the current 87 RON the produd can be suitably blended with TEL or used as a gasoline pool component". The other piece of evidence relied upon by the department is Kirk Othmer, En-: cyclopedia of Chemical Technology Vol. 14, according to which the product of the same composition as Insan-LE can be used as 'Motor Spirit'. It is stated therein under the Heading 'Oxo Process' that the Gaseous Paraffins mixed with starting olefin can be easily separated from the crude liquid product and can be re-cycled to the reactor if sufficient unreacted olefin is present, or can be used for fuel or return to the refining area. Liquid olefin-paraffin mixtures can also be recycled or can be blended into gasoline. There is also the opinion given to the department by the Chemical Examiner during the cross-examination on 19-4-1980 wherein relying on the same textual authority as above he has opined that the product can be used after blending with gasoline as 'Motor Spirit'. As against such evidence relied upon by the department the Appellants have submitted affidavit of Shri I.B. Gulati, Retired Director of Indian Institute of Petroleum, Dehradun. He has given his opinion on the basis of test reports! on Insan-LE furnished to him, on tests conducted by IPCL, IOC and from their own laboratory. He has examined the suitability of using Insan-LE stream as Motor Gasoline. He has referred to the ISI specifications for Motor Gasoline, which gives the RON of 87 minimum and mere is also a criterion of copper! strip corrosion not worse than No. 1 (3 Hrs. at 50°C). Dr. Gulati has observed that Octane Number is much below the required value of 87 hence it does not| meet the minimum quality level requirements of IBS and hence is not fit to be used in the engines as motor gasoline. He has also found that it does not meet the copper strip corrosion test laid down in Indian Standard for motor gasoline. Apart from this the Appellants are relying upon the fact that IOC has not agreed to accept the Insan-LE stream from them for commercial use. Their proposal in this regard was made on 6-7-1993 to the IOC who have replied on 22-4-1994 after subsequent discussions with the Appellants regarding use of certain return streams from their works in the IOC refinery for blending into Petroleum products. The IOC has stated that after studying the characteristics of the Appellants' return streams Insan-LE/Iso Heptane and Insan-HE, the IOC found that the same are not suitable for blending into any of their finished products. This fact combined with Dr. Gulati's opinion that the material does not satisfy the specifications of ISI would go to show that there is no evidence of actual, commercial, fitness of Insan-LE for use as fuel in spark ignition engines. The opinion given by the IOC Research Centre, Shri Nanda does not indicate such practical and commercial use. In this context it is also relevant to consider the department's own understanding of the scope of sub-heading 2710.19 of the Central Excise Tariff which is reflected in the Finance Ministry's letter F. No. 528/157/93-CUS. (TU), dated 15-9-1994 on the subject of classification of Heptene and Nonene under Central Excise Tariff. The Ministry has inter alia stated that these items cannot be classified as 'Motor Spirit' under any of the sub-heading starting from 2710.11 ending with 2710.19 of the Central Excise Tariff since for all these sub-headings the criterion of suitability for use as fuel in spark ignition engine is prescribed. Ministry's letter further observed that, however, the Central Excise Tariff entry for Aviation Turbine Fuel (ATF) does not prescribe any end use but mainly defines the item with reference to technical specifications and the Ministry observed that as the product considered in that case met these technical specifications, they would merit classification as ATF under the Central Excise Tariff. Therefore on evidence as noted above since Insan-LE does not satisfy the criterion of suitability for use as fuel in spark ignition engines, because it is not practically or commercially so used, then the claim made by the Appellants that it should fall under sub-heading 2710.21 as Aviation Turbine Fuel which does not prescribe criterion of suitability, has lot of force and has to be accepted. For being classified thereunder Insan-LE also answers the criterion being Hydrocarbon oil and also with reference to satisfying the smoke point 18 m.m. or more, final boiling point not exceeding 300°C. The findings of the Commissioner in the order also indicates that it does satisfy the specifications in the Tariff Heading 2710.21 having smoke point 30 m.m. and final boiling point 175-177°C. The Commissioner has also held that fuel which has a final boiling point of less than 27°C would fall within the ambit of Motor Spirit 2710.19 if the same is suitable for use as fuel in spark ignition engines. He also refers to the ISI specification in this connection. But, as has been noted above, the ISI specification also includes corrosion specification and the test reports produced by the Appellants shows that it fails the corrosion test as laid down in the ISI specification. This, apart from the quality again as noted above, that the product does not satisfy the suitability criterion in the Tariff heading for Motor Spirit. Therefore in view of the foregoing discussions it is held that Insan-LE is more appropriately classifiable under Heading 2710.21 as Aviation Turbine Fuel which does not prescribe any Criterion of any end use.