2025 (12) TMI 1744 - AAR - Customs

Zinc oxide mixture for sunscreen: classification dispute over CTH 2817 vs 3304, held cosmetic preparation under 33049990

The dominant issue was classification of a zinc oxide-based mixture (zinc oxide with cyclopentasiloxane, PEG-10 dimethicone and triethoxycaprylylsilane) ... Classification of the product - CM3K65HP1(Zinc Oxide and Cyclopentasiloxane and PEG-10 Dimethicone and Triethoxycaprylylsilane) - classifiable as Zinc Oxide under Heading 2817 or under CTH 3304? - HELD THAT:- The CTH 2817 is for Zinc Oxide and Zinc Peroxide and CTI 28170010 is specifically for Zinc Oxide. In the instant case the subject goods which is a mixture of Zin Oxide in which Zinc Oxide consists only 59.5-63.5% rest constituents are Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane. As the CTH 2817 is very specific and limited to Zinc Oxide and Zinc Peroxide, it appears that there is much less scope of mixture of different compounds with specific properties with specific purposes under the CTH which is consciously mixed to prepare the subject cosmetics and skin care products - On-going through Chapter Note 1 of Chapter 28, It is observed that the subject goods i.e CM3K65HP1:Zinc Oxide mixture is not a separate chemical element or separate chemically defined compounds. Further, the stabilisers or solvent etc. used in the Zinc Oxide viz. Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane in preparation of the said mixture is added neither for safety/ preservation nor for transport. Further, these compounds are added for specific use in skin care/cosmetic products and not for general use. Hence the subject goods cannot fall under preview of CTH 2817. In the instant case, the subject goods is Zinc oxide with Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane is to be used as UV protection which further used in sunscreen/cosmetic formulations. The said mixture is such that it includes all the essential ingredients/components which is intended to be used as sunscreen/cosmetic formulations. Thus in accordance with the above mentioned definition of cosmetic the mixture of Zinc oxide with Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane can be defined as cosmetic. On conjoint reading of Chapter Note 3 to the Chapter 33 with HSN explanatory notes to the CTH 3304, it is observed that the scope of CTH 3304 is not restrictive to the sunscreen other than put up of a kind to be sold by retail use, rather It enhances the scope of the usage of the product other than for retail sale either, in as much as the sunscreen is specifically included under the CTH 3304 and the chapter note 3 to the chapter 33 in respect of heading 3301 to 3307 apply inter alia to the products whether or not mixed and put up for retail use. In the case of CC vs. Wood Craft Products Ltd., [1995 (3) TMI 93 - SUPREME COURT] the Hon'ble Supreme Court of India held that in case of doubt, HSN is a safe guide for ascertaining true meaning of any expression used in the Act, unless there is an express different intention Indicated in the Customs Tariff itself. In the instant case, it is undisputed fact that the subject goods i.e. CM3K65HP1 'Zinc Oxide Mixture' which comprises Zinc Oxide, Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane is mixture/preparation and prepared for specific use i.e. sun protection and as a physical barrier against UV radiation. Further the description given under the CTH 3304 of The Customs Tarrif Act 1975 reads as: Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations - there are no ground to avoid the GRI 1 to come to the conclusion based on the specific inclusion of the said goods under CTH 3304. The subject goods in question i.e. 'CM3K65HP1 Zinc Oxide Mixture (Comprising Zinc Oxide, Cyclopentasiloxane, PEG-10 Dimethicone and Triethoxycaprylylsilane)' merit classification under Custom Tariff Heading 3304, more specifically under CTI 33049990 of Chapter 33 of the First Schedule to the Customs Tariff Act, 1975. Issues: (i) Whether the product 'CM3K65HP1 (Zinc Oxide and Cyclopentasiloxane and PEG-10 Dimethicone and Triethoxycaprylylsilane)' is classifiable under Customs Tariff Heading 28170010 (zinc oxide) or under Heading 3304 (specifically 33049990) as a cosmetic/sunscreen preparation.Analysis: The classification is governed by the General Rules for Interpretation (GRI) applied sequentially, together with Chapter and Section Notes and HSN explanatory notes. GRI 1 requires reference to the terms of the headings and relevant Chapter Notes. Chapter Note 1 to Chapter 28 permits inclusion of substances dissolved in solvents or with stabilisers only where such additions are adopted solely for safety, preservation or transport and do not render the product particularly suitable for a specific use. The subject mixture comprises zinc oxide together with cyclopentasiloxane, PEG-10 dimethicone and triethoxycaprylylsilane, which, on the materials on record, are used to impart properties (spreadability, stability, reduced whitening and formulation suitability) specifically for sunscreen/cosmetic use rather than solely for preservation or transport. Chapter Note 3 to Chapter 33 and the HSN explanatory notes include sunscreen preparations within Heading 3304; the Drugs and Cosmetics Act definition supports treating components intended as ingredients of cosmetics as cosmetics. Application of GRI 3(b) on mixtures directs classification according to the component giving the mixture its essential character only where GRI 1/3(a) do not resolve classification. The description and function of the constituents indicate the product is a preparation specifically for sun protection and thus falls within the scope of Heading 3304.Conclusion: The product is classifiable under Customs Tariff Heading 3304 and, having regard to the dash arrangement, under Sub-heading/CTI 33049990. The applicant's contention for classification under Heading 28170010 is rejected.Ratio Decidendi: Where a mixture is prepared with constituents that render it specifically suitable as a cosmetic/sunscreen preparation and the additions are not solely for preservation or transport, GRI 1 and Chapter Note 3 to Chapter 33 require classification under Heading 3304 rather than classification as the pure chemical under Chapter 28.