1998 (8) TMI 255

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....;Before the period in dispute the three types of Oxides were being claimed and were being classified by the department under sub-heading 2824.00. Accordingly in the classification list filed by the appellant w.e.f. 15-2-1991 and w.e.f. 28-2-1993, the appellant claimed the classification of all the products including Lead-Oxide-Grey under sub-heading 2824.00 of the schedule to the Central Excise Tariff Act, 1985. Before granting approval to the classification list, show cause notice were issued to the appellants proposing to classify the Lead Oxide Grey under Chapter sub-heading 3823.00 instead of their claim of classification under sub-heading 2824.00. The proposed approval was proposed on the ground that Lead Oxide Grey is a specially prep....

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....tic industries etc. 5. After consideration of the appellant's pleas the Assistant Collector of Central Excise, Calcutta vide his impugned Orders classified the said Lead Oxide Grey under Heading 38.23 on the ground that the same was a specially prepared mixture obtained by controlled oxidation of power Lead. He also relied upon Trade Notice No. 210/CH/85/Cal-1/90, dated 16-11-1990 which clarified that Lead Oxide Grey is appropriately classifiable under sub-heading No. 3823.00 and not as Oxides of Lead falling under Heading 28.24. On appeal against the Order of the Assistant Collector, the appellant did not succeed. Hence the present appeals before us. 6. Appearing before us Smt. Archana Moitra, ld. Consultant mainly argued on tw....

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....in the storage batteries, the product is also being used in the other industries is of no relevance inasmuch as the classification of the product is not dependent upon its uses. As regards the appellants' submission that the classification cannot be modified he submitted that it is not a case of modification of earlier approved classification list, but is a case of approval of freshly filed classification by the appellants. If the department was earlier committing the mistake by classifying the product under a wrong heading, that mistake is always rectifiable while granting approval to the subsequently approved classification lists. Accordingly he prayed for rejection of the appeals. 8. We have duly considered the submissions made fro....

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.... both are used in the manufacture of storage battery plates. The Supreme Court in the Woodcrafts case, referred to supra, has held that HSN Explanatory Notes are binding in character and can be relied upon for the purposes of interpretation of Tariff under Central Excise Tariff Act, 1985. Shri N. Mookerjee's contention that Chapter Note (2) to Chapter 39 is not present in HSN is factually incorrect inasmuch as the same Chapter Note (2) is also available under Chapter 38 of Explanatory Note. Though there cannot be any legal dispute as regards Rules 3(a) & (b) of the Rules of Interpretation, we find that the same are not applicable to the facts of the instant case inasmuch as the appellants' product being a specially prepared mixture, cannot ....