TaxTMI 
TaxTMI 
TaxTMI 
1985 (11) TMI 122
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....by the Superintendent of Central Excise, under Item 68, CET. However, on 9-8-1982, the respondent wrote to the Department claiming, that as per Notification No. 23/55 dated 29-4-1955, the product would correctly fall under Item 14, CET (and not Item 68) and was entitled to unconditional exemption from duty under that notification. This was followed by another letter of 20-9-1982. The Assistant Collector, Bhavnagar, after hearing the respondent, passed an order dated 26-5-1984 rejecting the claim. In this Order, the Assistant Collector observed that Notification No. 23/55 covered inter alia only "silica" but not precipitated silica unlike the term "chalk (including not precipitated chalk)". He further held that the mere use of precipitated silica as extender or filler in paints or pigments would not qualify precipitated silica to be considered as paint or pigment. He ordered that the product be classified under Item 68, CET and rejected the respondent's claim for payment of duty under protest. In appeal, the Collector (Appeals) referred to the report of Chemical examiner which said that precipitated silica was an extender pigment or filler and an order (S/49-978/84 C.L. of September....
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....silica. 5.  In reply to a query from the Bench, Shri Tripathi stated that both mineral silica and precipitated silica were designated by the same chemical formula: SiO2. However, precipitated silica which was not a mineral but was a chemical derived from sodium silicate (in the case of precipitated chalk, the raw material is chalk) was not covered by the notification. He referred in this context to Serial No. 4 of the notification-oxide of iron-which referred to also the synthetic product unlike in the instant case. The C.C.C.N. (Customs Cooperation Council Nomenclature) classified natural silica as a mineral product under Chapter 26 (Heading 26.01) and precipitated silica as a chemical in Chapter 28 (Heading 28.13) and silica gel under Heading 38.12. Since precipitated silica was not a pigment, colour etc.. Item 14 CET could not cover it, nor would Notification 23/55. Therefore, the correct tariff item was 68 CET. 6.  Replying on behalf of the respondent, Shri C.S. Lodha, learned Counsel, submitted that the situation was analogous to refined oil where also the question arose whether refined oil was the same thing as or ceased to be oil. The Supreme Court in the Tungabh....
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....as paint, pigment etc. but elsewhere. Insofar as the meaning of the term "mineral" was concerned, our attention was drawn to the Supreme Court decision in the M.M.T.C. case-1983(13)E.L.T. 1542 and the Tribunal's decision in the J.K. Batteries case 1985 (20) E.L.T. 889. The S.D.R. concluded by submitting that if the Bench were to hold that precipitated silica fell under 14, CET, the respondent should be put to strict proof of the use of precipitated silica before the benefit of Notification 23/55 was extended to it. 9.  We have carefully considered the submission of both sides. The process of manufacture of precipitated silica as given by the respondent and as embodied in the Collector's appeal is as follows :- "STAGE 'A'-Sodium Silicate is heated by steam and reacted with sulphuric acid to form precipitated silica, Slurry. STAGE 'B'-The Slurry is filtered in Filter Press. STAGE 'C'-The Filter Press is washed with water until the cake is free from sulphate impurities. STAGE 'D'-Wet cake is fried to remove the moisture contents. STAGE 'E'-The dried silica is pulverised to obtain Precipitated Silica in a powder form. To remove the iron tramp, the magnets are provided in the....
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....rally occurring mineral silica. As can be seen from the process of manufacture described earlier, silica sand (SiO2) is first converted into sodium silicate (Na2 SiO3 ) which is then subjected to further processes resulting in silica (SiO2) precipitating out. The process of manufacture thus involves not merely physical changes but chemical changes as well. However, the chemical formula for both natural mineral silica and precipitated silica is the same, namely SiO2. Precipitated silica is stated to have superior properties. 16.  We had occasion to consider the term "mineral filler" in the very notification in the Searsole Chemicals Ltd. case (supra). We noted therein that though precipitated chalk was a prepared product and, at the most, could be said to be a prepared or processed mineral, it was described as one of the most versatile mineral fillers in Kirk Othmer's "Encyclopaedia of Chemical Technology". It must be mentioned that in that case too, chalk underwent chemical and physical treatments resulting in precipitated chalk. Chalk (CaCO3) gets converted into Calcium Hydroxide Ca(OH)2 which, on carbonation, yields chalk (precipitated) (CaCO3). Even so, it was, as we noted....
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....e any such qualification. It would, therefore, be reasonable and legitimate to infer that the said entry would cover also substances which are recognized in literature as "minerals", though they may not be in their naturally occurring state. And, we have already noted that precipitated silica is recognised as a mineral filler in the "Handbook of Fillers and Reinforcements for Plastics" by Karz and Milewski. We have also noted that the "Glossary of Chemical Terms" says that "synthetic" minerals of higher purity than natural products are also comprehended in the term "mineral". 19.  Based on the above discussion and the analogy of precipitated chalk, we are of the view that precipitated silica can also be appropriately described as a mineral falling within the purview of S. No. 1 of Notification 23/55. It is the common position that in the case of both products, the starting material is a naturally occurring mineral (chalk or silica) which undergoes chemical and physical changes, resulting in the precipitated product (chalk or silica) which is chemically the same as the starting material. We have already held that precipitated chalk is a mineral filler. The notification, in ter....
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...., the Court held that the ore concentrate was "ore". The concentrate was the result of "selective mining" i.e. wolform ore taken out from rock and concentrating the WO3 content by washing or magnetic separation. In the case before us, it is not a question of simple physical separation of impurities and concentrating the active ingredient of the mineral but of subjecting the mineral to the chemical and physical process we have noted. The M.M.T.C. case does not seem to be of direct relevance to the case before us. 23.  During the hearing, the classification of precipitated silica in the C.C.C.N. was referred to by Shri Tripathi. C.C.C.N. classifies Silicon Dioxide SiO2 (pure silica and silicic anhydride etc.) obtained by treating silicate solution with acids (as in the present case) as a chemical under Heading 28.13 reading: "Other inorganic acids and oxygen compounds of non-metals (excluding water)". Silica Gel would fall under Heading 38.12. Natural silica sand, it was pointed out, would fall under Heading 25.05. All these may be so but what is good for the C.C.C.N. which is a self-contained code with section and chapter notes, rules of interpretation and a commentary in the ....