TaxTMI 
TaxTMI 
2025 (11) TMI 971
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....eclaring the same as Dioctyl Phthalate (DOP) and classified it under the CTH 29173920 and thereby availed benefit of concessional rate of duty as provided under the Notification No. 152/2009-CUS dated 31.12.2009, which is not available to Dioctyl Ortho Phthalate. Accordingly, Summons dated 12.09.2019 were issued to the Director Sh. Mahendra Bhanmal Jain, and his statement was recorded. 1.2. On completion of the investigation, the Principal Additional Director General, DRI, New Delhi issued the SCN dated 25.06.2020 demanding differential duty amounting to Rs. 56,71,510/- on the ground that the goods imported by the Appellant were mis-declared as 'Dioctyl Phthalate (DOP), and classified the same under the CTH 29173920, whereas the goods should be treated as "Dioctyl Ortho Phthalate (Ortho DOP) classifiable under the CTH 29173200. 1.3. The said Notice was adjudicated by the Commissioner of Customs (Port) vide Order No. KOL/CUS/COMMISSIONER/PORT/03/2023 dated 24.03.2023, wherein he has ordered as under:- (i) The goods imported by the Appellant are Dioctyl Orthophthalate, appropriately classified under CTH 29173200 instead of CTH 29173920 as declared by the Appellant. ....
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....hority concluded that the goods imported by them under the 10 Bills of Entry were 'Dioctyl Orthophthalate', for which the benefit of concessional rate of duty available under Notification No. 152/2009-CUS dated 31.12.2009 is not available. In this regard, the Appellant submits that for classifying an item, its scientific and technical name has to be considered and not commercial or market parlance understanding. As the department has not drawn any samples and conducted any tests, there is no evidence available on record to substantiate the allegation that the goods imported by them under the 10 Bills of Entry were 'Dioctyl Orthophthalate'. 2.3. The Appellant further submits that deletion of the Tariff Entry of Dioctyl Phthalate under CTH 29173920 post Budget, 2018 does not ipso facto imply that the said item would be classifiable under the CTH 29173200, rather it implies that the same item should now find place under residual entry CTH 29173990 or under the new entry introduced in the Tariff with the description Dioctyl isophthalate and Dioctyl terephthalate . 2.4. The Appellant submits that in view of the Explanatory Notes, read with the Chapter Notes, Heading etc, Dioctyl P....
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.... are two classifications for the same product i.e. 2917 32 00 & 2917 39 20. Therefore, in terms of chapter Note 3 to the chapter 29, goods which could be included in two or more of the headings of this Chapter are to be classified in that one of those headings which occurs last in numerical order. According to this view the product merits classification under CTH 2917 39 20. This view is controverted by field formations who are of the opinion that DEPH is classifiable under tariff item - -2917 32 00. 3. Board examined the issue and in this regard it is clarified that: a. The product under examination is Dioctyl orthophthalate (DEPH) which may be referred by a common name [i.e. Dioctyl phthalate (DOP) or IUPAC name [bis(2-ethylhexyl) benzene- 1,2dicarboxylate] or by any other name in chemistry or in trade parlance. b. Chapter Note 3 of Chapter 29 provided that goods which could be included in two or more of the headings of chapter 29, are to be classified in one of those headings which occurs last in numerical order. The said chapter note 3 reads as: "Goods which could be included in two or more of the headings of this Chapter are to be classified....
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....emain under tariff item-2917 32 00. f. Board is therefore, of the view that meta and para variety alone of dioctyl-pthalate shall be classified under tariff item 2917 39 20. Dioctyl orthophathalate (DEPH) shall continue to be classified under tariff item-2917 32 00. 4. All pending assessments, if any, may be finalized accordingly. 5.3. From the clarification reproduced above, we observe that the category of goods namely, "phthalate" are primarily of three types:- Dioctyl orthophthalate (DEHP) 'ortho' variety. Dioctyl isophthalate 'meta' variety. Dioctyl terephthalate (DOTP) 'para' variety' 5.4. Prior to Budget 2018, in the Customs Tariff the goods with the description Dioctyl orthophthalate has a specific entry under the CTH 2917 32 00. There is no separate tariff entry available for the other two items namely Dioctyl isophthalate ('meta' variety) and Dioctyl terephthalate (DOTP) ('para' variety'). Thus, if these two items are imported they have to be classified under the general entry available in the tariff with the description Dioctyl Phthalate, under the CTH 29173920. We find that prior to deletion of the general entry Dioctyl ....
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....5 00 -- Phthalic anhydride 2917 36 00 -- Terephthalic acid and its salts 2917 37 00 -- Dumethyl terephthalate 2917 39 -- Other 2917 39 10 --- Dibutyl phthalate 2917 39 20 --- Dioctyl isophthalate and Dioctyl terephthalate 2917 39 30 --- Phthalic acid 2917 39 40 --- Dimethyl phthalate 2917 39 50 --- Trimellitic anhydride 2917 39 60 --- Isophthalic acid 2917 39 90 --- Other 5.5. Thus, we observe that post budget, when the Appellant continued to import the same goods, the said goods should be classifiable only under the new entry under the CTH 29173920, which replaced the earlier description Dioctyl Phthalate and not under 2917 32 00 as Dioctyl orthophthalate. We observe that the benefit under Notification No. 152/2009CUS dated 31.12.2009 is available to the goods falling under the CTH 29173920. Thus, we find that the deletion of the Tariff entry with the description Dioctyl Phthalate, would not have the effect of denying the benefit of the Notification No. 152/2009CUS dated 31.12.2009, as the appellant continued to import the same goods, from the same supplier before and after the Budge....