2013 (9) TMI 1014 - AT - Central Excise

Tribunal classifies 'WUDCURE' as insecticide not disinfectant under CETH 3808.10

ELLORA SERVICES Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-IV

The Tribunal ruled in favor of the appellant, a manufacturer of 'WUDCURE,' classifying the product under CETH 3808.10 as an insecticide rather than under ... Classification of goods - Classification under CETH 3808.10 or under CETH 3808.90 - Held that:- If one examines carefully the product literature, the use of the product, the chemical examiner’s report, the technical literature on the subject and the HSN Explanatory Notes in respect CETH 38.08, what emerges is that the product “wudcure” manufactured by the appellant is more appropriately classifiable under Heading 3808.10 as an insecticide and not under the residual category of 3808.90 which covers products such as disinfectants and the like. - As held by this Tribunal in the case of Industrial Organic Corporation Ltd.(1998 (6) TMI 382 - CEGAT, NEW DELHI), classification under Insecticides Act, 1968 is not determinative of a product’s classification under the Central Excise Tariff Act. Thus even if a product does not conform to the definition of ‘insecticide’ in the Insecticides Act, 1968, it can still be classified as an insecticide for the purposes of Central Excise Tariff if the product is marketed as an insecticide and is used as such. In the present case, the test of marketability and use as an insecticide is satisfied. Further, it is not necessary that to merit classification as an insecticide, the product should kill the insect. Even if the product repels the insects, it would suffice as can be seen from the HSN Explanatory Notes and as held by this Tribunal in the case of Bayer Indian Syntans Ltd. case (2011 (4) TMI 850 - CESTAT, CHENNAI). - Classification of the product manufactured by the appellant under CETH 3808.10 as it stood at the relevant time. - Decided in favour of assessee. Issues: Classification of the product under Central Excise Tariff Act - CETH 3808.10 or CETH 3808.90Comprehensive Analysis:Issue 1: Classification of the product under CETH 3808.10 or CETH 3808.90The appellant, a manufacturer of a product branded as 'WUDCURE,' classified the product under CETH 3808.10, pertaining to 'insecticides, fungicides, herbicides, weedicides, and pesticides.' The department contended that the product should be classified under CETH 3808.90 as 'disinfectants and similar products.' A show cause notice was issued proposing the reclassification, leading to a dispute for the period 2001-02.Analysis: The lower appellate authority agreed with the department's view, classifying the product under CETH 3808.90. The appellant argued that the Insecticides Act, 1968 classification is not determinative for Central Excise Tariff classification. The product was described as an insecticidal preparation by the Chemical Examiner. The product literature highlighted its use as a wood preservative against termite attacks. The HSN Explanatory Notes also supported the classification under CETH 3808.10 for products used to control termites.Judgment: The Tribunal examined the product literature, test report, technical information on termites, and the HSN Explanatory Notes. It concluded that the product 'WUDCURE' is appropriately classified under Heading 3808.10 as an insecticide. The Tribunal emphasized that marketability and use as an insecticide, even if not killing insects but repelling them, suffice for classification. Thus, the appeal succeeded, and the classification under CETH 3808.10 was upheld.This detailed analysis of the judgment highlights the key arguments, evidence, and legal reasoning leading to the decision regarding the classification of the product under the Central Excise Tariff Act.