TaxTMI 
TaxTMI 
2017 (1) TMI 209
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtificate. Therefore, the goods were confiscated and an option to redeem the same was given to the appellant on payment of redemption fine of Rs. 2 lakhs and a penalty of Rs. 15,000/-. Aggrieved by the Order-in-Original dated 3.1.2004, the appellant filed an appeal before the Commissioner (Appeals), which was rejected. Aggrieved by the same, the appellant is before us. 3. Shri J.C. Patel, learned Counsel for the appellant submits that the goods imported by them namely, boric acid is specifically covered under CTH 2810, which is freely importable. He submits that the Revenue has relied upon a Circular No. 61/2004 dated 28.10.2004 whereas the goods were shipped much before the date of the circular. Therefore, there is no mala fide on part of the appellant. He further submits that the circular No. 61/2004 clarified that boric acid being an insecticide mentioned in Schedule to the Insecticides Act, 1968 would be classifiable under Heading 38.08. In this regard, he submits that as per the ITC (HS) to Export Import Policy prevailing at the time of import, the boric acid was clearly mentioned under CTH 2810 and was freely importable and there was no condition of any certificate under Ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve relied upon the Kirk Othmer's Encyclopedia of Chemical Technology, 4th Edition, Vol. 4, the relevant text is extracted as under :- USES : (i) Boric acid has surprising variety of applications in both industrial and consumer products (6.57). It serves as a source of B2O3 in many fused products, including textile fiber glass, optical and sealing glasses, heat-resistant borosilicate glass, ceramic glazes, and porcelain enamels (see ENAMELS, PORCELAIN AND VITREOUS). It also serves as a component of fluxes for welding and brazing (see SOLDERS AND BRAZING ALLOYS: WELDING). (ii) A Number of boron chemicals are prepared directly from boric acid. These include synthetic inorganic borate salts, boron phosphate, fluoborates, boron trihalides, borate esters, boron carbide, and metal alloys such as ferroboron (11108-67-1). (iii) Boric acid catalyses the air oxidation of hydrocarbons and increases the yield of alcohols by forming esters that prevent further oxidation of hydroxyl groups to ketones and carboxylic acids (see HYDROCARBON OXIDATION). The bacteriostatic fungicidal properties of boric acid have led to its use as a preservative in natural products such as lumber, rubber latex em....
X X X X Extracts X X X X
X X X X Extracts X X X X
....calculated on the dry weight, when the H2BO3, content exceeds 85%, the acid is classified in this heading. Metaboric acid (HBO2)n is also classified here. This heading does not include : (a) Tetrafluoroboric acid (fluoroboric acid) (Heading 28.11) (b) Glyceroboric acid (Heading 28.20) 10. The HSN Explanatory Notes does not say that boric acid is also used as insecticide or pesticide, presumably because boric acid is predominantly used as raw material. 11. The Supreme Court in the following cases has held that HSN Explanatory Notes are safe guide for interpreting the Tariff Entries (both under the Central Excise Tariff and Customs Tariff): (a) CCE, Shillong v. Wood Craft Products Ltd. - 1995 (77) E.L.T. 23 (S.C.) (b) CC, Bombay v. Business Forms Ltd. - 2002 (142) E.L.T. 18 (S.C.) (c) CCE, Hyderabad v. Bakelite Hylam Ltd. - 1997 (91) E.L.T. 13 (S.C.) 12. The General Rules for the Interpretation of the Custom? Tariff or Excise Tariff provide as under : "Classification of goods in this Schedule shall be governed by the following principles: "l. The titles of Sections, Chapters and sub-chapters are -1. provided for ease of reference only; for legal purpose, classifica....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 21. After going through the record, the Board Circular dated 28-8-2004, encyclopedia of the Chemical Technology and HSN notes, we are of the considered opinion that the Boric Acid is classifiable under Chapter Heading No. 28.10 of the HSN, but not under Chapter Heading No. 38.08. First of all, we have to state that the Boric Acid is normally used as raw material in the industry. Heading No. 38.08 covers those goods which are insecticides. The Boric Acid imported in the form is incapable of killing pests. The authorities below have failed to consider the contentions put forth in the right prospective. They ought to have considered the contents of the letter dated 20-12-2004 and should not have insisted upon the formal registration by the appellants and production of end-use certificate. Therefore, we find the impugned order is erroneous and liable to be set aside. Accordingly, the same is set aside. 22. In the result, appeal is allowed with consequential reliefs. It is seen that in the above decision, in para 14, it has been clearly held that Boric Acid as specified in the Schedule to the Insecticide Act, 1968 and for the purpose of Insecticide Act, boric acid is an insecticide....