TaxTMI 
TaxTMI 
TaxTMI 
1988 (2) TMI 83
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....oils admittedly had no resinous or plastic properties, they would not fall under Chapter 39 of the Customs Tariff. For the same reason, he said that assessment to countervailing duty should be under Item 68 CET. In doing so, he appeared to have relied on a decision of this Tribunal, order No. 133-134/84-C, dated 29.2.1984. 2. This decision of the Tribunal was the subject of long arguments by the two sides before us. Since this is a five-member bench set up to reconcile, the difference of opinion and conflicts between different benches, I shall not rely on any past judgments, though I may refer to some of their contents. 3. The arguments of the department were a plain and simple one: silicones are specifically listed under Chapter 39 of the Customs Tariff and Item 15-A of the Central Excise Tariff and, therefore, assessment of these silicone oils/fluids must be made under these headings. It makes no difference whether the oils have resinous or plastic properties; as long as the product is a silicone, it must be assessed under the head under which it is specified. The learned counsel also referred to various rules of interpretation of the Customs Tariff, but there is no need to rep....
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....es are mentioned all possess the qualities of mouldability; since their imported silicone oil does not behave in the same manner, it should not be assessed under the heading for such goods. 6. The argument on behalf of M/s. Hico is that silicone must be separated from other resins and plastics if it is not capable of moulding or of being moulded, or does not behave like moulding resins and synthetic polymers and has no resinous or plastic character. Such statement is relevant only when one is talking about resins. If the resin does not behave like a resin, but has properties that a resin does not have or has application that resins do not find, it might be logical to say that that resin moves out of the family of artificial resins and plastic materials. A resinous quality or behaviour by a resin used as a resin/plastic material is a strong recommendation for the categorisation of that resin as an artificial resin and plastic material. 7. Thus when classifying a PVC moulding powder, one would look about to see if there is a heading for such moulding powder. If there is one, then the moulding powder must be placed in that head or subhead and not under the head that covers only the ....
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....s or gums, alkaline catalysts are used. Fluids are sometimes blended in order to make fluids of intermediate viscosities; and blending can affect physical properties appreciably. 10. The same Encyclopaedia records that dimethyl silicones are good hydrodynamic lubricants but poor for sliding friction. These silicone fluids find uses in the manufacture of greases, in textile paper and other industries and in foam control. In these uses, they are usually in emulsions with a suitable emulsifier. The emulsified silicone fluids are usually dimethyl or methylalkyl silicones, although they may also be of any type. 11. The same Kirk-Othmer Encyclopaedia begins the section on SILICONE with these words : The name silicone denotes a synthetic polymer (RnSi°(4_n)/2)m where n=l-3 and m 2. A silicone contains a repeating silicon-oxygen backbone and has organic groups R attached to a significant proportion of the silicon atoms by silicon-carbon bonds. Silicone has no place in scientific nomenclature, although it was originally introduced under the supposition that compounds of the impirical formula RR&SiO were analogous to ketones (1). Several decades later it was used to describe related poly....
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....ence and Technology (volume 12) between silicone fluids (which include silicone oils) on the one hand and silicone resins on the other." This is evidence that in science, fluids are regarded as including oils. 12. The learned counsel for M/s. Hico submitted lengthy arguments on how to interpret the tariff items and that if the items are interpreted properly, silicone fluids would not be assessable with the resins and other high polymers, especially in respect of assessment under the Central Excise Tariff Item 15-A. They say that the silicone fluids are not silicone resins and cannot find a place in heading that houses resins. I am afraid, however, that this is not a proper understanding of the item. Before and after its amendment in 1982, Item 15A of the Central Excise Tariff always carried the list which includes silicones as one of the products and silicones include resins, elastomers and fluids; and fluids in turn include oils whose derivation I have briefly shown by a reference to the Kirk-Othmer book. I am unable to understand or to appreciate the argument that because of any fancied definition or any perceived difference between the fluids and resins, fluids must be taken ou....
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....ause of its low degree of polymerisation ; but there is nothing in the law that a low polymerisation product is not classifiable under Chapter 39 or Item 15-A. If the fluid is a silicone product, it must be assessed as a silicone under its head and I can see no need for further argumentation and dissertation. 15. But let us see how leading authorities classify them. The CCCN under Chapter 39 under SILICONES has these sentences : The silicones of this heading are non-chemically defined products containing in the molecule more than one silicon-oxygen-silicone linkage, and containing organic groups connected to the silicon atoms by direct silicon-carbon bonds. They have a high stability and may be either liquid, semi-liquid or solid. The products include silicone oils, greases, resins and rubber. 16. The Harmonised Commodity Description and Coding system carries this heading in respect of silicones - SILICONES IN PRIMARY FORMS: The silicones of this heading are non-chemically defined products containing in the molecule more than one silicon-oxygen-silicon linkage, and containing organic groups connected to the silicon atoms by direct silicon-carbon bonds. They have a high stabil....
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....t a silicone polymer. Whatever uses it may be put to in preparations, compounds etc., when it was imported, it was a silicone fluid in primary form and must be assessed accordingly. I might draw attention here to an observation that I made in order No. C-485/85 re : M/s. Reliance Silicones in paragraph 15 and 16 : Only "other materials specified below" can be accommodated. Thus some materials like resols and chlorinated rubber, valcanised fibre having been specified below, are also to be accommodated. Similarly, silicones especially some of the fluid forms may need specific inclusion to be able to enter. A silicone fluid if it is not a high polymer will not ordinarily, find a place in-item 15A; but this is overcome by the specific inclusion of "silicones"; and let it be noted by the heading clause "other materials" though not on its own, but working in tanden with the other clause "specified below" which limits and restricts the first clause to only those materials listed in the heading. And we must not forget that while there are differences, all the substances that go in Item 15A, fluids, resins, resols, resinoids, have much in common, the chief being the manner in which they ar....