ADANI WILMAR LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THE issue involved in this case is whether Bentonite imported by the appellant on 8 -11 -2002 is classifiable under CTH -2508.10 as claimed by the appellants or not. Departments contention is that the product is classifiable under CTH 3802.90.

(2.) HEARD both the sides.

(3.) LEARNED advocate on behalf of the appellants submitted that in this case there is no dispute that imported goods are processed Bentonite. Chapter note 1 of Chapter 25 of Customs Tariff provides that except where their context otherwise requires headings of Chapter 25 covers only products which are in the crude state or which have been washed (even with chemical substance eliminating the impurities without changing the structure of the product) crushed ground powdered, levigated, lifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes. During the relevant time Bentonite was specifically mentioned against the CTH 2508.10. He also submitted that during the relevant time according to ITC (HS) classification of export and import items, processed Bentonite (including activated and ground) was covered under heading 2508.10.02. Further, Note -1 (a) to Chapter 38 provided that chapter 38 which does not cover separate chemically defined elements or compounds. Since Bentonite is separately chemically defined compound and specifically covered under Chapter 25 is covered under Chapter 25 only and not under CTH 3802, as claimed by the department. He further relied upon the decision by the Honble Supreme Court in the case of M/s. Dunlop India Limited and MRF Limited v. UOI - 1983 (13) E.L.T. 1566 (S.C.) in support of his contention that classification under ITC (HS) should not have been ignored in this case and as held by Honble Supreme Court, ITC (HS) must be read as complementing the tariff. Further, he also submitted that the heading which provides the most specific description should be preferred to the residuary entry. Further with effect from 1 -2 -2010 the tariff was alligned to the ITC (HS) to the eight (8) digit level and activated Bentonite was specifically covered by entry 2508.10.90. He submitted that this amendment made explicit what was at all times implicit and relied upon the decision of the Honble Supreme Court in the case of Collector of Central Excise, Shillong v. Wood Craft Products Limited - 1995 (77) E.L.T. 23 (S.C.). He submitted that chemical examiners report was not helpful to the department since the report has merely stated that goods imported was processed Bentonite. He also relied upon the explanation given to activated clay in the Foseco Non -Ferrous Foundrymans Handbook, 11th Edition, according to which only sodium Bentonite can be considered activated bentonite. He also submits that reliance of the Commissioner (Appeals) on the Boards circular dated 10 -6 -2002 was misplaced since Boards circular cannot go against the statutory language of the relevant tariff entries.