TaxTMI 
TaxTMI 
2023 (9) TMI 730
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.... sent to CRCL, Kandla vide test memos No.s 1100025 and 1100026 both dated 21.10.2021. CRCL, Kandla vide Lab test report No.5009 dated 27.10.2021 pertaining to bill of entry 5921646 dated 20.10.2021 "The sample as received is in the form of clear colourless liquid. It is composed of mixture of light mineral hydrocarbon oil having oil content more than 70 % by weight having following constants; Density @ 15 degree C(gm/ml - 0.7807 Flash Point (Degree C) - 38 Initial Boiling Point (Degree C) - 155 05% (V/v) Recorded at (Degree C) - 160 10% (V/v) Recorded at (Degree C) - 161 50% (v/v) Recorded at (Degree C) - 167 90% (v/v) Recorded at (Degree C) - 180 95% (v/v) Recorded at (Degree C) - 184 Final Boiling Point (degree C) - 196 Aniline point (degree) - 84 "The above tested parameters are in agrees,(sic) with Petroleum Hydrocarbon solvents (145/205) as per IS:1745. The actual end use of the sample may be ascertained at your end. Sealed remnant sample returned herewith." 2.1 CRCL, Kandla vide Lab test report No.4863 dated 22.10.2021 pertaining to bill of entry 5921650 dated 20.10.....
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....vents (145/205) as per IS:1745:2018 2.3 On the basis of the test reports of the CRCL, Kandla and New Delhi. the department came to the conclusion that the imported goods are petroleum Hydrocarbon Solvents(145/205) and are classifiable under chapter heading 27101239 of the custom tariff. Further as the goods falling under tariff heading 27101239 are restricted and allowed to be imported through state trading enterprises only as per Policy condition 5 of the Chapter -27of ITC(HS). Schedule-L. and since the appellant in this case is neither an STE nor has submitted any documents showing grant of such rights by the DGFT to import or export any of the goods notified for exclusive trading through STES, the appellant have violated the provisions of FTP and Customs Act, 1962. 2.4 The adjudicating authority accordingly passed the impugned order wherein he * ordered to reject the declared classification of imported goods under CTH 27101990 and reclassified the imported goods under 27101239 * confiscated the goods valued at Rs. 15,85.68,306.47 covered under bills of entry no.s 5921646 and 5921650 both dated 20.10.2021 under section 111 (d) and 111(m) of the Customs Act....
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.... with similar volatilities, if the boiling range is wide, the fluid is termed wide cut. Distillation may be carried out by several ASTM test methods, including ASTM D 86, D 850, D 1078, and D 1160. The appellant has prepared a chart to present in a tabuler from have different carbon pictures would emerge whom ranges are narrow and wide and when presented in the form of 60/80, 50/120, 145/205, 50/120, 90|130, 120/240, 150/300, 156.9/202.4 (the appellant's goods found as tested.) 8. Under IS 1745 colour (Saybolt) should be minimum + 20 for solvent 145/205 by the method mentioned in IS 1448, a copy of which is annexed hereto and marked as Annexure "B" (Pages 26 to 34 of Compilation). The colour of solvent is a flag marker as colour intensity is directly proportional to concentration compound called optical density. If the colour of the solvent is + 25 it would fall under 90/135, if the solvent has the colour in excess of +25 it would be ousted from the petroleum hydro carbon solvent under IS 1745. The colour connotes purity which is required to be determined in accordance with the test as laid down in IS 1448. This test was not done to challenge the classification CTH 271....
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....145/ 205 which is to be reckoned on the basis of IS 1448 a copy of which is annexed here to and marked Annexure "E" (Pages 69 to 87 of Compilation). It provides that initial boiling point (first vapour recovered) should reach at 145 and thereafter every five minutes/ 10 minutes (as per IS) recovery should be found at the temperature provided in Annexure "A" (clause 9.8) of IS Standard and it would proceed by recovery of recording of 10%, 20%, 30%, 40%, 50%, 70%, 90%, 95% of solvent following final boiling point and residue recovery. Initial boiling point would reach at 145 where is in the subject case it starts at 167.8 and FBP comes at 196/202.4 where as it should come at 205 and duration of IBP and FBP is to be read with intervals of time where specified evaporation should be noted. There is no such presentation. The data 167 /202.4 show very late IBP and quick evaporation and drying point at 194 which would mean a specific chain of hydrocarbon which is narrow cut whereas 145/205 is a wide cut range and a different item having a different CAS number. Higher quantum of gas and lesser quantum of carbon will culminate into quick evaporation and early IBP and FBP. Proportionately hig....
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.... 197 ELT page 324 (SC) and Hindustan Ferodo -Vs- Collector reported in 89 ELT page 16 wherein the Hon'ble Supreme Court has held that classification of goods is the matter relating to chargeability and the burden of proof squarely upon the residue. If the department intends to classify the goods under a particular heading or sub-heading different from that claimed by the importer, department has to proper evidence to discharge the burden of proof. Copies of the judgments are annexed marked "F" (Pages 88 to 96 of Compilation) and "G" (Pages 97 to 101 of Compilation). 16. Since the department has not been able to prove by any relevant marker that goods could fall under 271012 or it could not fall under Customs Tariff Heading 271019990. The Custom entry given by the appellant under Customs Tariff Heading 27101990 should have been accepted as rightly assessed. 17. The Hon'ble Supreme Court in the case of Krishna Techno Com, confirming the judgement of this Tribunal held that light oil and preparation are those of which 90% or more by volume distilled at 210 degree celcious not below. The result obtained below 210 degree celcious was discarded in view of the sp....
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..... They thus relied upon decision in their own matter delivered as Final order No. 75776 dated 22/06/2023, by the Calcutta Bench also on the decision on the matter of M/s. Krishna Technochem Pvt Ltd reported in 2022 (379) ELT 273 (S.C), which has even being confirmed by the Apex Court reiterated the findings of the Commissioner (Appeals). 5. Learned AR placed reliance on the findings of the authorities below and on the test reports to support departmental classification. We find that in the instant case, the subject matter are goods i.e. White Spirit, which are claimed for classification under Tariff Heading 27101990, by the party. The department on examination through CRCL found the goods to be mixture of light mineral hydrocarbon oil having oil content more than 70%. On the basis of the another test report found the same to be mixture of light minerals hydrocarbon oil having oil content of more than 70% by weight, and therefore confirming to petroleum oil/hydrocarbon solvent as per IS 1745-2018. The report did not indicate the usage of the product. Appellant sought retest through CRCL report, which indicated the sample to be petroleum hydrocarbon solvents (145/205 as per IS 174....
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....ecision of the coordinate Bench of Calcutta High Court in their own matter i.e M/s. Kunjal Synergies Pvt Ltd (Kolkata) decided vide Final Order No. 75776-75777/2023 and pronounced on 22 June, 2023. The coordinate Bench while dealing with similar imports of item which were claimed to be Low White Spirit has thoroughly analysed various parameters, the statutory notes as well as findings of the CRCL on various parameters, and more particularly Chapter Note 4 of Chapter 27, which indicates that to be included in Sub Heading 271012, as low white oil in the matter, atleast 90% or more by volume should distil at 210° according to ISO. This aspect during the course of its finding, the coordinate Bench has gone into at length, to indicate based on earlier decision of M/s. Krishna Technochem Pvt Ltd., delivered vide final order no. 77087-770892019 dated 25.09.2019, and which was confirmed by the Supreme Court as reported in 2002 (379) ELT 273 (S.C), in which Hon'ble Supreme Court upheld the decision of Bench of Tribunal at (Kol) with the finding that the expression "at" in chapter Note 4 of Chapter 27 cannot be construed as "upto" and therefore 90% or more by volume (including losses mus....
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....per the Test Report details furnished above, the IBP of the impugned goods is 162 degree Celsius and FBP is 194 degree Celsius, whereas as per the IS standard 1745 the minimum IFB should be 145 degree Celsius (IBP) and maximum FBP should be 205 degree Celsius respectively. The Appellant stated that the IFB 162 of the impugned goods is much higher than the minimum IFB requirement of 145 as per the IS 1745 standard. Also the FBP 194 of the impugned goods as per the Test Report is much lower than than the maximum FBP requirement of 205, as per IS 1735 standards. The Appellant also stated that the flash point 48 for the impugned goods as per the Test Report is much higher than the requirement of 35 flash point as per IS 1745 standards. The Aromatic content % by volume as per the Test Report found for the impugned goods was 21 whereas the requirement as per IS standard 1745 is 45. Thus, they argued that none of the above parameters in the Test Report are matching with the requirements as per IS 1745 standards for classifying the goods as "Light Oils and preparations" under CTH 2712. 15. The Appellant cited the decision of the Tribunal Kolkata in the case of Krishna Technochem P....
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....much below 210 degree Celsius and the word used in sub-heading notes referred to herein above is "at" and not "up to". Therefore, we see no reason to interfere with the impugned order(s) passed by the Tribunal. 4. The present appeals are, accordingly, dismissed." 16. In view of the above decision, the Appellant stated that when the Test Reports differs from the standards prescribed, the goods cannot be held to satisfy the requirements under IS 1745 standards meant for CTH 2710. Hence the impugned goods cannot be categorized as "Light Oils and Preparations" as per the CRCL Test report. We find merit in the argument of the Appellant. None of the above said parameters are matching with the minimum or maximum standards fixed as per IS 1745 standards. There is a vast difference between the minimum IFB and maximum FBP fixed as per IS standard 1745 and the result received for the impugned goods. Hence, we hold that the impugned goods cannot be classified under CTH 27101239 as per the comparison between the Test reports received from CRCL and its comparison with the IS Standard 1745 parameters required. 17. We find that Revenue has relied upon Note 4 to Chapter 27 for cla....