TaxTMI 
TaxTMI 
2002 (3) TMI 682
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....rized under description 'scouring paste and powders' and that the same is classifiable under SH 3401.20. The grounds urged by the Revenue before the Commissioner (Appeals) have been noted by Commissioner (Appeals) in para 2 of his order and for the purpose of convenience, same are reproduced herein below :- "2. As the said order passed by the Assistant Commissioner of Central Excise, Dindigul was not proper and legal, Commissioner of Central Excise, Madurai has issued directions under Section 35E for filing an appeal against the said order on the following grounds :- "(1)  The product 'Vim dish wash bar' is a mixture of surface active agent, abrasive materials and other chemical ingredients. It is claimed to be a scouring bar for cleaning utensils and other dishes. As per the claim of the manufacturer, the surface active agent acts on the surface of the dishes by reducing surface tension and converts the soil, grease and oily matters into a state of solution or dispersion which is later washed away and the abrasive materials helps to polish or brighten the dish by friction. Thus it is evident that the actual cleaning is by the surface active agent and that the abras....
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....34.01 and not under 34.05 along with scouring powder and other similar preparations. As has been held by Supreme Court in the case of Collector of Central Excise, Shillong v. Woodcrafts Products Ltd., [1995 (77) E.L.T. 23 (S.C.)], for resolving any dispute relating to tariff classification, the HSN notes can be a safe guide. This has also been reiterated by SC in the case of Collector of Central Excise v. Bakelite Hylam Ltd., 1997 (91) E.L.T. 13 (S.C.). Hence going by the HSN notes referred to above, the product Vim Dish Wash Bar is correctly classifiable under heading 34.01 only. (5)  The argument that 'Vim' powder is being classified under heading 34.05 and hence 'Vim Dish Wash Bar' should also be classified under the same heading is no argument in view of the more specific Note 2 of Chapter 34. (6) The argument that Chemical Examiner has given an opinion that the classification of the product would be under heading 34.05 is also not relevant as the Chemical Examiner is not expected to classify the products but only to give test results of the products sent for testing. Even the test report given by the said Chemical Examiner clearly shows that the product 'Vim Di....
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....ll as surface active agent and preparation for use as soap. Hence, for inclusion under this Heading, the product should be designed for use as soap. It should be used for all purposes for which the soap is used. VIM dish wash bar is not a soap per se. Soap is invariably used for the washing of human body and washing of clothes. The abrasive detergent cannot be so used for either purposes because of the presence of a large percentage of abrasives used. Thus, the product, an abrasive detergent is not usable as soap and, therefore, it would not fall under sub-heading 3401 as it is neither a soap nor useable as soap. (iii)  Heading 3204 dealing with organic surface active agent does not cover abrasive preparations containing surface active agents (scouring pastes and powders). They are indicated as falling under 3405 vide note (d) on page 486 of HSN under Heading 3402. This clearly enunciates that an abrasive preparation, despite its containing surface active agents is classifiable under 3405. As per Rule 3(b) of Rules for Interpretation of the schedule, the detergent abrasive is a com­posite article, containing an abrasive component, a detergent compo­nent, fille....
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....wders and similar preparations. Since the Vim Dish wash bar is not in the paste form or powder form but in the bar form, the same has to be classified under heading 34.01 and not under Heading 34.05 as contended by the respondent. Their contention that as per Rule 3(b) of Rules for Interpretation, their products has to be classified by the material which gives its essential character and the abrasive which is the largest single component is a deliberate introduction into the product, the same has to be classified as a scouring preparation, is also not valid in view of the fact that Rules for Interpretation applies only if the product could not be classified by applying Rules 1 and 2 of the Rules for Interpretation. Rule 1 lays down that the titles of Sections and Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise require, according to the provisions hereinafter contained. Note 2 of Chapter 34 specifically provides for the classification of such composite products. Interpretative Rule 3(b) is ther....
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....aining abrasive powders re­main classified in heading No. 34.01 only if in the form of bars, cakes or moulded pieces or shapes. In other forms, they are to be classified in Heading No. 34.05 as' scouring powders and similar preparations". In view of the above provisions since Vim dish wash bar is in the form of a bar, the same is correctly classifiable under Heading 34.01 even though it may be containing abrasive powders fillers etc. Heading 34.01 covers soap, organic surface-active products and preparations for use as soap, in the form of bars, cakes, moulded pieces or shapes. Since the Vim dish wash bar is in the form of a bar and the same is used as soap the same is specifically classifiable under heading 34.01 read with Note 2 of Chapter 34 supra. Therefore, the contention of the appellant that Vim dish wash bar is not a soap because the soap is invariably used for washing of the human body and washing of the clothes and the abrasive detergent under discussion cannot be used for either purposes, is not tenable in view of the provisions contained in Note 2 of Chapter 34. Whether the Vim dish wash bar is containing abrasives or fillers is not material and the product has t....
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....found in vegetable oils and their product is not a saponified matter as 'soap' and that it is not soluble in water. Therefore, it does not qualify to conform technically to "soap". He also found that the item does not fall under the category of organic surface-active products and similar preparations. Neither in common parlance the item is understood as laundry soaps, toilet soaps, disinfect soaps or medi­cated soaps. Such soaps available in the market are intended for use by rubbing with body or clothes for washing purpose. While the item Vim Dish Wash Bar is used for cleaning kitchen utensils and it belongs to the family of scouring preparations such as vim cleaning powders and liquid and vim dish wash bar which contains higher percentage of abrasives and which cannot be used on human body or clothes. The item is rubbed on the surface of the utensils with a scrubber, which is vetted, the bar is touched and a little amount of the content of the bar is taken and thereafter with an abrasive action, the utensils in question is cleaned. Hence the function of dish wash bar is akin to scouring powder sold as "Vim cleaning powder" except that vim dish wash bar is in the solid form of....
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.... conclusion that the product is required to be classified under sub-heading 3405.40 as "Scouring pastes and powders and scouring preparations" is required to be upheld as against the claim of the Revenue for classification under SH 3401.20 which refers to "Organic surface-active products and preparations for use as soap in the form of bars, cakes, moulded pieces or shapes". 13. Appellants have produced before us, the details of ingredients of its percentage was also relied before the authorities. The same is extracted herein below : INGREDIENTS OF VIM DISH WASH BAR Sr. No. Ingredient Percentage Soluble/Insoluble Level of Hardness (MOH) 1. Acid Slurry 12.00% to 15.00% Soluble - 2. Soda Ash 4.50% to 6.00% Soluble - 3. Sodium Tri Poly Phosphate 1.50% to 3.00% Soluble - 4. Sodium Silicate 8.00% to 10.30% Soluble - 5. China Clay 22.00% to 26.00% Insoluble 1 6. Feldspar 28.00% to 32.00% Insoluble 6-6.5 7. Calcite 12.00% to 14.00% Insoluble 3 8. Hyd. Lime 1.00 to 2 00% Insoluble - 9. Yellow Colour 0.03% to 0.05% - 10. ....
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.... cannot be proceeded in terms of section notes and chapter notes in terms of Interpretative Rule 1, only then the other Rules of Interpretation should be applied for the purpose of classification. 16. The explanatory notes to HSN are having persuasive value and they are required to be adopted for the purpose of classification. Keeping these two points under consideration, we have to proceed to see as to whether the item can be classified under sub-heading 3405.40 of CET as claimed by the appellants and as upheld by the Asstt. Commissioner in Order-in-Original No. 84/96 dated 31-5-96. The explanation given to the item "soap" as appearing at page 518 of HSN under heading 34.01 is noted herein below : (1) SOAP Soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms. In practice, part of the fatty acids may be replaced by rosin acids. The heading covers only soap soluble in water, that is to say true soap. Soaps form a class of anionic surface-active agents, with an alkaline reaction, which lather abundantly in aqueous solutions. There are three categories of soap: Hard soaps....
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....phthenates of heading 34.02. (4) Industrial soaps, prepared for special purposes, such as those used for wire-drawing, for polymerizing synthetic rubber, or in laundries. Subject to the exception in paragraph 1(f) above, the soaps of this heading are generally in the following forms : bars, cakes, moulded pieces or shapes, flakes, powder, paste or aqueous solution. 17. As can be seen from the above explanation, the soap is an alkaline salt (inorganic or organic) formed from a fatty acid or a mixture of fatty acids containing at least eight carbon atoms and it will be soluble in water that is to say true soap. The categorization of soap has been given therein. The Chapter Note 2 to Chapter 34 clearly indicates that Heading No. 34.01 covers abrasive powders only if in the form of bars, cakes or moulded pieces or shapes. It also states that abrasive pastes and powders whether or not containing soap fall under 34.05. Therefore, we have to examine as to whether the item is an abrasive paste and powder to come within the category of sub-heading 3405.40. 18. We have seen the explanatory note at page 520, which gives the items, which are not covered under heading....
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....ions may have a basis of wax, abrasives or other substances. Examples of such preparations are : (1)  Waxes and polishes consisting of waxes impregnated with spirits of turpentine or emulsified in an aqueous medium and frequently containing added colouring matter. (2)  Metal polishes and polishes for glass consisting of very soft polishing materials such as chalk or kieselguhr in suspension in an emulsion of white spirit and liquid soap. (3)  Metal, etc., polishing, finishing or fine-grinding products contain­ing diamond powder or dust. (4)  Scouring powders consisting of mixtures of very finely ground sand with sodium carbonate and soap. Scouring pastes are obtained by binding these powders with, for example, a solution of waxes in a lubricating mineral oil. These preparations, which are often put up for retail sale and are usually in the form of liquids, pastes, powders, tablets, sticks, etc., may be used for household or industrial purposes. The heading also covers paper, wadding, felt, non-wovens, cellular plastics or cellular rubber, impregnated, coated or covered with such preparations, but textile dusters and metal pot scourers simil....
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....a surface-active agent. The SCN also referred to the write up of the party wherein they have described the items China Clay and Feldspar as fillers, which contribute to the body of dish wash bar as a natural abrasive product. Although, there is mixture of surface active agent and other ingredients, the appellant claim that the item in question cannot be used for washing the clothes or for use on human body, as it will have a serious effect both on human skin surface as well as on the clothes in view of the abrasive element contained in it, which irritates the human skin or tears out the clothes. It has to be used as scouring bars for scouring function, which abrades or scours to cleanse or brighten by friction. The cleaning or brightening property of the scouring preparation is attrib­uted to the abrasive function of the abrasive agent present in that prepara­tion. The department in the SCN has gone through the principle functions of the surface active agent to rule out the classification of the product under SH 3405.40 as claimed by the appellants by applying Interpretative Rule 3(b) Rules of Interpretation to the CETA, which rule lays down that when mixtures consisting of....
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....ory stand inasmuch as contending in the SCN it is averred that although it cannot be considered as 'detergent' but still it has to be considered as a 'soap' for the reason that it has got organic surface agent. Thus, admitting that the predominant functional character of the product is abrasive 23. We have read Note 2 to Chapter 34 which is also extracted supra which deals with the classification of the product under 34.01 and it applies only to 'soap' soluble in water. Although the abrasive products remain classified in this heading but the note further states that "scouring powders and similar preparations" would fall under 34.05. Now, we are required to see as to whether the item is a "scouring paste and powders and similar preparations" classifiable under heading 3405.40 as claimed by the appel­lants. 24. In this regard reference to Indian Standard Specifications for Scouring Powders under IS 6047 : 1970 is relied. The portion pertaining to Foreword in paras 0 1. to 0.3.3 is extracted herein below : INDIAN STANDARD SPECIFICATION FOR SCOURING POWDERS 0. FOREWORD 0.1 This Indian Standard was adopted by the Indian Standards Institution on 2 ....
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....eanses by friction. There is no abrasive ingredient listed in the Brussels Trade Nomen­clature in this Section. 0.3.3 Scouring powders, which form the subject matter of this stan­dard, come within the purview of Brussels Trade Nomenclature Sec­tion VI. 34.05 and not Section VI. 34.02. 0.4  For sieve analysis, the use of IS Sieves (conforming to IS : 460-1962) is prescribed. Where IS Sieves are not available, other equiva­lent sieves, as judged from aperture size, may be used. 0.5 For the purpose of deciding whether a particular requirement of this standard is complied with, the final value, observed or calculated, expressing the result of a test or analysis, shall be rounded off in accordance with IS : 2-1960. The number of significant places retained in the rounded off value should be the same as that of the specified value in this standard." On a reading of the above material, it is clear that it recognizes scouring powders are formulations containing powdered mildly abrasive material along with a cleansing agent like soap, synthetic detergent etc. These are used for cleansing of utensils, crockery, floors, washbasins etc. where cleans­in....
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....The technical book "The Manufacture of Soaps, Other Detergents and Glycerin" by Edgar Woollatt deals about "Abrasive Powders" and the manner of its manufacture. From para 11.3.2. of the said literature, it shows that in the selection of an abrasive powder for use in scouring products, there needs to be a compromise between scouring performance against difficult soils, such as foodstuffs burnt onto pans, and mildness to surfaces. It also states that the modern trend is towards greater mildness but an abrasive also needs to be selected to meet the marketing requirements of the product in which it is to be used. It gives all the details about the factors and the minerals that are required to be selected At pages 434 and 435, the reason as to why such hardness for purpose of scouring and scrubbing dirt for dish washing hand is explained and certain amount of calcite and other insoluble salts, organic agents are also required for reaction purpose. 25. Appellants have also produced the write up of each of the minerals like calcite and other materials from technical book to show about their use as abrasive element for cleaning utensils. Appellants have also produced Indian Standar....