TaxTMI 
TaxTMI 
2009 (3) TMI 315
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....ved is whether the goods imported by the appellant described as Fused Magnesium Chromide would be classifiable under Chapter Heading 2519 90 40 as claimed by the appellant or under Chapter 3824 90 90 as decided by the Department. 4. The learned Advocate stated that the impugned product is actually Fused Magnesium Oxide. He stated that the same product is being imported through other Ports, which have classified it under CH 2519 90 40. Only in Visakhapatnam Port, the Customs Authorities had changed the classification on the ground that a product which has undergone fusion cannot come under Chapter 25. He urged the following grounds :- (i) The appellants are importing Fused Mag Chrom from China since last few years classifying them unde....
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....hemicals. However, he classified the goods under CH 3824.90.90, which deals with Chemical Products. Chapter 38 under Section (VI) of CTH deals with 'Products of Chemical and Allied Industries' while Chapter 25 under Section (V) deals with 'Mineral Products'. (iv) In the impugned order, the learned Adjudicating Authority has resorted to Rule 3(c) of the General Interpretative Rules. Rule 3(c) deals with classification of commodities, which cannot be classified by reference to Rule 3(a) or Rule 3(b). Straightaway, the Assistant Commissioner has resorted to Rule 3(c). Only when Rule 3(a) or Rule 3(b) are not applicable, recourse to Rule 3(c) should be taken. (v) The impugned goods are not Chemical Preparations or goods of alliec industri....
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....d Note will depend upon the context in which the entries have been worded. If an entry is clearly worded and is broad in character, the same would lead to the conclusion that the context otherwise required." Therefore, it cannot be argued that in order to classify the goods under CH 2519.90, the goods must be in crude state or naturally occurring state. He took us to the entries to show that even fused, burnt, calcined and sintered products are classifiable under CH 2519.90 in terms of heading/sub-heading. (vi) In the case of UOI v. Garware Nylons Ltd. - 1996 (87) E.L.T. 12 (S.C.), it is held by the Apex Court that the burden of proof is on the; taxing authorities to show that a particular item is taxable in the ma....
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....of diphenyl and diphenyl oxide as heat transfer medium, mixed polyethylene glycols; salts for curing or salting, surface tension reducing agents: 3824 90 90 Other The fact that the impugned product contains Magnesium Oxide of 69.3% is not in doubt. Just because the product had undergone fusion, we cannot conclude that it cannot come under Chapter 25. This is very clear from Chapter Note 1 to Chapter 25 and the Interpretation of the Hon'ble Apex Court. Moreover, there is a practice of classifying these goods under Chapter 25 for a long time and also the other Ports are also classifying the item under Chapter 25. While comparing the entries in Chapters 25 and 38, it appears that the item would more appropriately be classified under C....