Decided on July 01,1991



S.V. Maruthi, Member (J) - (1.) THESE two appeals are disposed of by a common order as the dispute relates to the classification of Liquid Phenyle.
(2.) THE appellants manufacture Liquid Phenyle. Prior to 1st March, 1986 it was classified under Tariff Item 68. After 1st March, 1986, they declared their product under Chapter Heading 3808.10. After 1 -3 -1986 a show cause notice was issued on 16 -11 -1987 proposing to classify the product under Heading 3808.90 and also proposing to recover duty of Rs.1,20,821.16 for the period from April, 1987 to October, 1987. On receipt of reply, the Assistant Collector classified the product under Tariff Heading 3808.90 and confirmed the demand by order dated 31st August, 1990. The appeal to the Collector was rejected. Another show cause notice was issued on 30 -11 -1987 proposing to classify the liquid phenyle under 3808.90. The Assistant Collector by his order No. 74/88 classified the same under Chapter Heading 3808.90. The date of the order is 15 -4 -1988. He also directed the appellants to pay duty from the beginning at a higher rate. The appellant filed an appeal which was dismissed by the Collector. Hence the appeals before us.
(3.) THE Collector while approving the classification of the products under Chapter Heading 3808.90 in Appeal No. 74/88 confirmed the demand. In Appeal No. 164/90 the Collector set aside the observation of the Assistant Collector directing the appellants to pay duty from the beginning. The Collector also observed that "I observe that the function of disinfectant is different from those of insecticides, fungicides, herbicides, weedicides and pesticides. No doubt, the word 'Cide' means "substance that kills" or "killing". But a disinfectant like phenyle cannot be covered by the Tariff Sub -heading 3808.10". In support of his view, he relied on Collector of Central Excise, Bombay v. Standard Chemical and Pharmaceutical Co. - 1986 (24) ELT 373. The main contention of the appellant is that prior to 1 -3 -1986 phenyle was classified under Tariff Item 68 and under the exemption notification it was classified as an insecticide and, therefore, even after the change in the tariff schedule under the new tariff, it should be classified as insecticides falling under Tariff Heading 3808.10 and not 3808.90. He also submitted that Order Nos. 59 and 60/91 -C dated 16 -1 -1991 of this Tribunal in Bengal Chemicals and Pharmaceuticals (P) Ltd. v. Collector of Central Excise, Calcutta and the order of this Tribunal in Bengal Chemicals and Pharmaceuticals Ltd. v. Collector of Central Excise - 1990 (48) ELT 436 are distinguishable and not applicable to the product in question. According to him, phenyle acts as a repellent. In support of his contention that it acts as repellent, he relied on the order of this Tribunal in Collector of Central Excise v. Essen Synthetics (P) Ltd. -1987 (32) ELT 759 holding that "repellents even though they might not actually kill insects or pests would still be treated as insecticides or pesticides. Since phenyle being a repellent is an insecticide falling under 3808.10 and not under 3808.90". He next contended that the ISI specification adopted the formulation under the Pest Control Order. The ISI specification is relevant for interpretation of the tariff item and in support of his contention he relied on the judgment of Supreme Court in Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. 1988 (37) ELT 480 (SC). Relying on the judgment of the Supreme Court in Indian Aluminium Cables Ltd. v. Union of India and Ors. - 1985 (21) ELT 3 (SC) he submitted that genus and species determine classification. 'Insecticides' is a genus and Phenyle is a species of insecticides and, therefore, it should be classified under 3808.10. He also submitted that prior to 1 -3 -1986 it was classified as insecticide and the benefit of notification was given. Therefore, it should continue to be classified under 3808.10.;

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