TaxTMI 
TaxTMI 
2026 (1) TMI 582
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....poses to import, at Nhava Sheva Port, the product having the brand name "CO 2 Sustain" manufactured by Sustain Co2 Ltd., U.K. The applicant submitted that the said product, "CO2 Sustain" is Dispersion of Polysorbate 65 in Water and is used as a Non-Ionic Surfactant in Carbonated Beverages to prevent excessive foam. 2.2 The applicant submitted a Certificate dated 14-5-2024 of the foreign manufacturer in respect of the said product along with independent analysis report of the said product referred to in the said Certificate. As per the said Certificate of the foreign manufacturer, CO2 Sustain is a dispersion of Polysorbate 65 in water, which when heated for 1 hour at 20 degrees Centigrade at a concentration of 0.5%, forms a stable off white translucent liquid. Based on an independent Analysis report, the said certificate further states that the said product reduces the surface tension of water by 4.5 x 102 N/m or less. It was further stated in the certificate that it is used in carbonated beverages as a non- ionic surfactant to prevent excessive foam and thus acts as a processing aid in the filling of drinks containing carbon dioxide. It is approved and safe for use in food but w....
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....rt and reply from Jurisdictional Commissionerate 4.1 The applicant in their CAAR-1 indicated that they intend to import the subject goods i.e Co2 Sustain 2501 (dispersion of Polysorbate 65) at the jurisdiction of office of the Pr. Commissioner of Customs, NS-I, JNCH, Nhava Sheva, Tal: Uran Distt: Raigad, Maharashtra-400707. In terms of Provisions of the Section 28-I(1) of the Customs Act, 1962 read with the Sub-Regulation No. (7) of the Regulation No. 8 of the Customs Authority for Advance Rulings Regulations, 2021, the application was forwarded to the office of the Principal Commissioner of Customs, NS-I, JNCH, Nhava Sheva, Tal: Uran Distt: Raigad, Maharashtra-400707 on 23.05.2025 as indicated by the applicant at Sr. No. 13 of their CAAR-1 Forms calling upon them to furnish the relevant records with comments, if any, in respect of the said application. Further reminders were also sent on 17.06.2025, 08.08.2025 and 15.09.2025 to the concerned jurisdictional Commissionerate. However, no reply has been received till date. 5. Records of Personal Hearing 5.1 A personal hearing was held on 09.07.2025 at 04:00 PM in the office of the CAAR, Mumbai. Shri J. C. Patel, Advocate (AR)....
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....://www.venus-goa.com/low-foam-surfactants.php#:~:text=Low%20foam%20surfactants%20%7C%20low%20foaming,Description. As per this article, Non-ionic surfactants are used for foam control. c) Technical data sheet of Dowfax 81N13 appearing on website https://www.specialchem.com/adhesives/product/dow-dowfax-81n13-nonionic-surfactant. As per this website, the said product is a Non Ionic Surfactant which belongs to family of Defoamers/ Anti-foaming agents. d) Data Sheet of Dowfax DF-144 appearing on website https://www.dow.com/en- us/pdp.dowfax-df-144-onionic-surfactant.108538z.html#overview as per which the said product is an Non-Ionic Surfactant which is Defoaming/ Anti-foaming agent. e) Article on "Antifoaming agent" on website https://www.sciencedirect.com/topics/medicine-and-dentistry/antifoaming-agent#:~:text=HealthG.A.%20Blekas-Antifoaming%20Agents.G.A.%20Blekas as per which an antifoaming agent is an additive which reduces the surface tension of a solution or emulsion, thus inhibiting or modifying the formation of a foam. It further states that these agents have surface active properties and are in soluble in the foaming medium. f) Article "Foamin....
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....rd as well as existing legal framework. 7.2 At the outset, I find that the issue raised at the Sr. No. 08 in the CAAR-1 form is squarely covered under Section 28H(2) of the Customs Act, 1962 being a matter related to the Classification of goods under the Customs Tariff Act, 1975. I further find that the applicant is a holder of an Importer Exporter Code (IEC) and thereby, is a valid applicant under Section 28E (c) of the Customs Act, 1962 for filing application under Section 28H of the Customs Act, 1962. 7.3 The applicant has sought advance ruling in respect of the classification of the product "CO2 Sustain 2501" which is a dispersion of Polysorbate 65 in water. The applicant submitted that the product i.e. "CO2 Sustain 2501" is a dispersion of Polysorbate 65 in water where concentration of Polysorbate 65 is less than 5% in the dispersion. Further, as per applicant's submission, it would be used as a Non-Ionic Surfactant in Carbonated Beverages to prevent excessive foam and thus, acts as a processing aid in the filling of drinks containing Carbon Dioxide. Further, it was submitted that it is approved and safe for use in food but would not be consumed itself as a foodstuff....
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....s taste fizzy for longer and experience fewer fill-line foam issues. Before delving further, it is essential to understand what is Polysorbate 65. Polysorbates are a family of non-ionic surfactants (poly-oxy-ethylene sorbitan esters) produced by ethoxylation of sorbitan esters; they function as emulsifiers, solubilizers and wetting agents in food, personal care and pharmaceutical formulations. Further, Polysorbate 65 (Polyoxyethylene (20) Sorbitan Tristearate) is recognized as a food additive / emulsifier by World Health Organization as INS 436; by European Union as E436 and US Food and Drug Administration lists it under 21 CFR 172.838. 7.7 Since the Product "CO2 Sustain 2501" is described by the manufacturer and applicant as pasteurised non-ionic surfactant, I will first examine the relevant Section Notes, Chapter Notes and Heading Text for Heading 3402. The relevant portion of CTH 3402 is reproduced below: 3402 ORGANIC SURFACE-ACTIVE AGENTS (OTHER THAN SOAP); SURFACE-ACTIVE PREPARATIONS, WASHING PREPARATIONS (INCLUDING AUXILIARY WASHING PREPARATIONS) AND CLEANING PREPARATIONS, WHETHER OR NOT CONTAINING SOAP, OTHER THAN THOSE OF HEADING 3401 - Anionic orga....
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.... than Soap) ii. Surface-Active Preparations, Washing Preparations and Cleaning Preparations The product CO2 Sustain is non-ionic surfactant. Surfactant is shortened term for surface- active agent; both refer to substances that reduce surface or interfacial tension and thereby act as emulsifiers, wetting agents, dispersants, detergents, or antifoaming agents depending on their structure and use. Therefore, it appears clearly covered under first category i.e. Organic Surface- Active Agents (Other than Soap) 7.9 For deciding whether the product falls under Heading 3402 or not as a Organic Surface-Active Agent, Chapter note 3 to Chapter 34 plays a vital role as it describes the condition needed to be fulfilled before classification of any product as Organic Surface-Active Agent. The same is reproduced below for ease of reference: 3. For the purposes of heading 3402, "organic surface-active agents" are products which when mixed with water at a concentration of 0.5% at 20℃ and left to stand for one hour at the same temperature: (a) give a transparent or translucent liquid or stable emulsion without separation of insoluble matter; and (b) re....
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.... at an interface; in this state they display a number of physico-chemical properties, particularly surface activity (e.g., reduction of surface tension, foaming, emulsifying, wetting), which is why they are usually known as "surfactants". However, products which are not capable of reducing the surface tension of distilled water to 4.5 x 10^-2 N/m (45 dyne/cm) or less at a concentration of 0.5 % at 20 ℃ are not regarded as surface-active agents and are therefore excluded from this heading. 7.12 From the above, I observe that for a product to be classified as an Organic Surface-Active Agent, it should produce a stable homogenised either transparent or translucent solution or emulsion when mixed with water at a concentration of 0.5% at 20℃ and it should not have any visual separation visible to naked eye when allowed to stand for one hour at 20℃. Also, at the same time, it should reduce the surface tension of distilled water to 4.5 X 10^-2 N/m or less. 7.13 I have gone through the copy of the Test Report submitted by the applicant regarding the Surface Tension Analysis and Stability Testing. In the report, it was concluded that at 0.5% concentration, t....
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...., merits classification under CTH 3402 and specifically under Heading 34024200 as it is a non-ionic Organic Surface-Active Agent. 7.15 Further, there is another probable heading i.e. CTH 3824 "Prepared binders for foundry moulds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included". However, on going through the heading text, I observe that this heading is residuary in nature and applies only when goods are not elsewhere specified or included. Heading 3824, being a residual heading applicable only to goods not elsewhere specified or included, is clearly excluded in view of the specific coverage under Heading 3402, in line with settled legal principles as the courts have consistently ruled that where goods are squarely covered by a specific tariff description, resort to a general or residuary entry is unwarranted. 7.16 Further, the applicant itself also suggested heading 3907 for the classification of the product. Heading 3907 of Chapter 39 is restricted to polymers of Section VII presented in primary forms, such as polyethers, polyesters, polycarbonat....