TaxTMI 
TaxTMI 
1990 (6) TMI 165
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....th creosote oil or other Coal Tar Distillation notifications. products. Item 11(5), CET with benefit of the above notifications. (c) Diesel Oil not elsewhere specified Item 9, CET with benefit of Notification 147/78 dated 5-7-1978. (d) Goods not elsewhere specified Item 68, CET with benefit of Notification 85/83 dated 1-3-1983 and 234/82 dated 1-11-1982 (serial No. 20) Bitumen (e) & Coal Tar Black Item 14II(ii) with benefit of Notification 86/83 dated 1-3-1983. 3. The dispute before the Assistant Collector covered only 21 products. There was no dispute in respect of the products shown at serial Nos. 19 and 20 of the classification list, namely, Shalijet Sealing Compound and Shalijet Primer. 4. The description of the products now in dispute before us, the results of the analytical test conducted by the Chemical Examiner and the Assistant Collector's order are summarised below :- Sl. No. in the Classi-fication list. Description of the product. Gist of the results of chemical test. Assistant Collector's order. 1. 2. 3. 4. 1. Distilled Tar The sample has the characteristics of partially distilled coal ....
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....   Classification under Item 68 since the product is of specific nature used for protection from electrical resistance and soil. Notification 121/62 not applicable. 13. Tar Stil tar The sample is composed of pitch blended with creosote oil containing some lower and higher coal tar distillation fractions. The Assistant Collector classified these products under Item No. 14II(5) against the assessee's claim for Item No. 11(5). 14. Tarstil Spe cial The sample is composed of pitch, blended with creosote oil. It contains some higher coal tar distillation fractions. -do-         15. Shalimastic L.C. -do-      -do-          16. Jet Set Primer The sample is composed of pitch Blended with creosote oil containing some higher and middle coal tar distillation fractions. It is specially processed and supplied along with plasticised pitch as a pipeline coating. It is, therefore, classifiable under Item No. 68, CET. 5. We have heard Shri Gopal Prasad, Consultant, for the appellants and Shri L.C. Chakraborty, Depart....
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....the description "partially distilled tar" in Item No. 11(2) covered pitch. [The wording of Item 11(2) as reproduced in para 7 of the decision is the same as that of Item 11(5) in force during the material time]. The Tribunal considered the matter at length and held that coal pitch was an item distinct from coal tar or partially distilled tar. 8. We do not see any reason to deviate from the above-referred to decision. Respectfully following the same, we uphold the classification of items at Serial Nos. 3 to 8 under Item 68, CET. Notification No. 121/62 applies only to tar falling under Item No. 11(5). Therefore, it does not apply to the subject pitches. 9. Re : Items at Serial Nos. 1 and 2 The learned Consultant submits that Notification 121/62 does not distinguish between tar and partially distilled tar or tar of various types. Though the learned D.R. supports the orders of the lower authorities denying the benefit of the notification, we do not see any good reason to deny the benefit. The term "Tar" should, in the absence of any contrary indication, covers tars of all types including partially distilled tar. Conformity with I.S.I. Specifications for different types of tar....
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.... - 14. I have gone through the order prepared by Hon'ble President and agreed to by learned Sister Member Judicial on 9-4-1990. I am unable to persuade myself to agree to his views. I am finalising my views as drafted by me on 28-2-1990 as below. 15. The appellants M/s. Shalimar Tar Products Ltd., Calcutta have sought for setting aside both the order in appeal dated 30-9-1985 passed by C.C.E. (Appeals) Calcutta and also order in original dated 2-5-1985 passed by the A.C.C.E., Dhanbad. 16. They have sought for classification of 22 items under various tariff items of the C.E.T. Schedule. They had filed classification list No. 26/83 effective from 1-3-1983 in supersession of their list No. Nil dated 31-12-1975 under Rule 173B of Central Excise Rules, 1944 for approval by the proper officer of the Central Excise. They have submitted that 20 out of the 23 items of which they had sought approval, 22 items except Item No 2 in their list were approved. Item No 2 namely Road Tar was provisionally approved by the proper officer. 17. In the revised classification list, the appellants claimed classification of items No. 1 to 16 under T.1.11(5) ; items Nos. 17 and 18 under TI9; Item....
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..... They have sought for classification of items 1 to 16 under T.I. 11(5). The Collector in the order-in-appeal has classified these items into A, B, C, D, E as follows : Items A Partially Distilled Tars 1 - 8  B Blends of Pitch with Creosote oil or other Coal tar distillation products. 9-16  C Diesel Oil Nos. 17 -18  D Goods not elsewhere specified 19 - 22  E Bitumen & Coal Tar Black 23 The appellants had claimed before the Collector for classification of Items 1 to 16 of the classification list under T.I. 11(5), Item Nos. 17-18 under T.I. 9, Items 19 to 22 under T.I.68 and Item No. 23 under T.I. 14(II) (ii) later changed to 11(5). SCHEDULE SI No. in the CL list Description of the product Gist of the results of chemical test Classification done by claim AC Assessee claim 1 2 3 4 5 A. Partially Distilled Tars 1. Distilled tar , It contains 20% by Vol. of fractions distilling between 180°c to 305°c. The residual matter left after distillation is pitch like solid melting point 45°c (appx.). The sample has the characteristics of....
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.... distillation product and has the characteristic of creosote oil (Not in dispute) -do- 18. Light Creosote Oil It is composed of Aromatic hydrocarbon having boiling point higher than Xylene. It has the charteristic of light creosote oil coal tar distilled (Not in dispute -do-   19. Shali Jet sealing compound TI 68 20. Shali Jet sealing primer -do- 21. Disinfectant fluid -do- 22. Winter Wash Oil -do- Bitumen & Coal Tar Black Shalimastic HD TI 14 (II)(ii) 20. The Assistant Collector had classified the products under dispute by taking into consideration the report of the Chemical Examiner. The report of Chemical Examiner about items 1 to 12 of the classification list, says that the sample is Coal tar pitch; "while the report of Item No. 8 of the classification list, says that the sample has the characteristics of Coal tar pitch. For items 9 & 10 the report says sample contains higher coal tar distillated fraction. For 13 - Sample in the form of a black coloured thick viscous liquid having colour of Coal Tar. For 14 & 15 - sample composed....
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....ty. They have disputed the classification of the products Winter wash oil and disinfectant fluid as Pesticides as falling under TI 68. It is their case that these products are entitled for benefit of Notification No. 234/82-C.E., dated 1-11-1982 (Sl. No. 20) as amended. They have also sought for tarstil tar, tarstil Shalimastic HD and Shalimastic LC under TI 11(5) instead of classification made byAsstt. Collr. under TI 14(I) (5) Paint and Emulsion not elsewhere specified. 23. The Collector of Customs has rejected the claim of the appellants that the product distillation tar should get exemption provided under Notfn. 121/62-C.E., dated 13-6-1962 as amended on the ground that it is partially distilled tar whereas the product mentioned in the exemption notification is tar only. He has also held that the products special hard pitch and Electrode pitch manufactured by the appellants are not included in the 1st specification mentioned for Coal tar pitch and hence he has rejected their claim under TI 11(5). He has also rejected the claim of four items of pitches under TI 11(5). The Collector has held that product creosote oil (both heavy and light) is classified under TI 9 as per the C....
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....ression blend of pitch. The impugned products are preparations from pitch. Both pitch and tar are preparations from coal tar and therefore they rightly come within the classification TI 11(5) sought for by them and exempted in terms of Notification No. 121/62 and 75/84 as amended by Notification No. 133/82 dated 22-4-1982. 25. Shri L.C. Chakraborty submitted that the classification has been based on the report of the Chemical Examiner. He further submitted that coal tar and partially distilled tar are different. He further submitted that the items 3 to 8 are items of pitch and the Department was justified in classifying them under TI 68. The Asstt. Collector had rightly classified the product Modulate under TI 68 basing on chemical examiner's report. He further submitted that special pitch were not found in ISI specification hence they were classifying under TI 68 and not TI 11(5) as claimed by the appellants. He submitted that jet set primer is also classifiable based on chemical examiner's report. The items tarstil, tarstil special, shalimastic LC and shalimastic HD are also classified under TI 14(5). He submitted that the product coal tar pitch is in the form of black colour ....
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....al Excise Rules, 1944, the Central Govt. hereby exempts tar falling under item No. 11 of the First Schedule to the C.E. & ST Act, 1944 (1 of 1944) with effect from the 24th April 1962 from the whole of the excise duty leviable thereon". 28. Now it has to be seen whether these items can be brought under TI 11 wherein the description of the goods also includes tar. TI 11(5) reads "tar distilled from coal or lignite and other mineral tars including distilled tars and blends of pitch with creosote oils or with other coal tar distillation products". We have noted above the definition of tar, coal tar and pine tar appearing at page 807-808 of materials Handbook. From the reading of the definition of the terms given above, it is clear that the products manufactured by the appellants have to be considered as products coming within the ambit of tar and classifiable under TI 11. 29. TI 14 deals with Varnishes, Bituminous and Coal tar blacks. All the products manufactured by the appellants are tar and distillation of tar. TI 11(5) is a specific entry wherein all the products manufactured by the appellants can be included. Therefore, this TI 14 is not appropriate and applicable in respec....