Classification of EXO gas as nitrogen gas upheld where the department failed to disprove its commercial and technical identity.

EXO gas was held to be classifiable as nitrogen gas under sub-heading 2804.90 rather than as a residual product under sub-heading 3823.00. The product was manufactured by burning atmospheric air in a combustion chamber, consisted predominantly of nitrogen, and was used captively as an inert cover in insoluble sulphur manufacture. In the absence of technical evidence from the Revenue to show that it was not nitrogen gas, the description and commercial understanding of the product supported classification as nitrogen gas. The burden of proving an alternative classification lay on the department and was not discharged.

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Issues: Whether EXO gas manufactured by the respondents is classifiable under sub-heading 2804.90 as nitrogen gas or under sub-heading 3823.00 as a residual product.

Analysis: The product was manufactured by burning atmospheric air in a combustion chamber and was used captively as an inert cover in the manufacture of insoluble sulphur. The product consisted predominantly of nitrogen and the respondents claimed that it was commercially understood as nitrogen gas with impurities. No technical evidence was produced by the Revenue to show that the gas was not nitrogen gas. On the facts, process of manufacture, end use, and technical material, the product was found to answer the description of nitrogen gas rather than a miscellaneous residual product. The burden of proving a different classification lay on the department and was not discharged.

Conclusion: EXO gas was correctly classified under sub-heading 2804.90 and not under sub-heading 3823.00.

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