DCW LTD Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal arises from Order -in -Appeal No. 130/93, dated 29 -9 -1993 upholding the classification of the item Weldgrade Ilmenite under Tariff Heading 38.23 which reads as follows : -

(2.) THE learned Advocate submits that the item in question is a pure grade with composition of TiO2 (Titanium Dioxide) to the extent of 92 to 93%. It has the constituent of Fe2O3 of 1.8%, FeO 0.25%, silica of 2% and other impurities including garnet of 3.5% and the resultant product is also treated with MnO2 which gives Weldgrade Ilmenite with a fused coating of MnO. He contend that although the appellants are clearing aluminium as weldgrade to be used in the manufacture of electrodes as flux. However, the item has to be classified only under Chapter Heading 28 as it satisfies the description as Titanium Oxide. It is his contention that in the case of Bombay Paints and Allied Products Ltd. v. C.C.E. as reported in 1984 (17) E.L.T. 473, wherein the Tribunal considered the classification of the item Titanium Dioxide RCR2 (Rutile grade) to be classified under Heading 32.04/12(1) of Customs Tariff Act as a pigment. While considering the aspect for classification, the Tribunal in para 8 noted that TiO2 when it is unmixed with barium or calcium sulphate or other materials or has not been surface treated is classifiable under Chapter 28 [28.01/58(12)]; otherwise as a pigment under Chapter 32 [32.04/12(1)]. It is his contention that the item impugned does not contain barium or calcium sulphate and therefore, it is required to be classified only under Chapter 28. He also brings to our notice the judgment rendered in the case of Apoorva Impex as reported in 1990 (49) E.L.T. 591 wherein also the Titanium Dioxide Rutile (TiO2) was held to be classifiable under Chapter 32.06 (3206.10) of the Customs Tariff Act, 1975.

(3.) THE learned DR points out from the Chemical Examiner's report at page 33, wherein the Chemical Examiner has examined and noted that the items which are noted above has subsequently been treated with MnO2 which gives Weldgrade Ilmenite and the appellants themselves were clearing it to for the use in the manufacture of electrodes as flux. He points out to the HSN Explanatory Notes under Chapter Heading 38.10 which classifies welding electrodes under this heading. He points out to the findings given by the Commissioner in para 4, wherein the Commissioner (Appeals) has in detail noted the Chemical Examiner's chemical analysis report and the manner of clearing these items as welding electrodes under Heading 38.10 as per the Tariff Heading then existing. The learned DR also points out that in terms of Interpretative Rules as per Rule 3(c) the description which falls in the latter heading is to be preferred, if the item satisfied more than one heading. He also points out that now it is well settled that the HSN Explanatory Notes has got persuasive value for the purpose of classification as held by the Hon'ble Supreme Court in the case of Woodcraft Products Ltd. as reported in 1995 (77) E.L.T. 23.