- (1.) These appeals are against the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (for short 'the Tribunal) dated 27-8-1997. The question for consideration is whether the product manufactured by the appellant-assessee namely Dimethicone is classifiable under Tariff Item No. 3003.20 (as claimed by the Appellant) or under Tariff Item No. 3910.00 (as claimed by the Respondent-Revenue). The Assistant Collector held that the product was classifiable under Tariff Item No. 3910.00. The Collector (Appeals) allowed the Appeal and held that the product was classifiable under Tariff Item No. 3003.20. The Tribunal by the impugned judgment has reversed the order of the Collector (Appeals) and has held that the product is classifiable under Tariff Item No. 3910.00.
(2.) For consideration of the question, it is necessary to note the Tariff Items. They read as follows :- 4-1-1 Heading No. Sub-heading Description of goods 39.10 3910.00 Silicones in primary forms 4-1-2 Note 6 to Chapter 39. 6. (a) In heading Nos. 39.01 to 39.14, the expression "primary forms" applies only to the following forms :- (i) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; (ii) Blocks of irregular shape, lumps, powders (including moulding powders), granules, flakes and similar bulk forms. (b) Notwithstanding anything contained in Note 3 to this Chapter, heading Nos. 39.01 to 39.14 shall also include primary forms obtained from conversion of another primary form, falling under the same heading, and such conversion shall amount to "manufacture". 4-1-3. Heading 38.23 and sub-heading 3823.00 38.23 3823.00 Prepared binders for foundry moulds or cores; chemical products and prepara-tions of the chemical or allied indus-tries (including those consisting of mixtures of natural products), not else-where specified or included; residual products of the chemical or allied industries, not elsewhere specified or included. 4-1-4. Note 1 to Chapter 38 "This chapter does not cover : (a) ............ (b) ............ (c) Medicaments (heading No. 30.03)" 4-1-5. Heading No. 30.03 and sub-heading 3003.20 30-03 Medicaments (including veterinary medicaments) 3003.20 Medicaments other than patent or proprietary) other than those which are exclusively used in Ayurvedic, Unani, Siddha, Homeopathic or Bio-chemic systems. Nil 4-1-6. Note 2(i) to Chapter 30 2. For the purposes of heading No. 30.03 : (i) 'Medicaments' means goods (other than foods or beverages such as dietetic, diabetic or fortified foods, tonic beverages) not falling within heading No. 30.02 or 30.04 which are either :- (a) products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic uses; or (b) unmixed products suitable for such uses put up in measured doses or in packings for retail sale or for use in hospitals."
(3.) At this stage, it must be mentioned that the question whether the product Dimethicone is a Silicone or not came up for consideration before this Court in Hico Products Ltd. v. Collector of Central Excise, reported ((1994) 4 SCC 578). This Court after considering the then Tariff Items came to the conclusion that it was a Silicone and inter alia held as follows :- "The products of the appellants as specifically classified in the lists and described as such separately are not noticed and classified as such in the Pharmacopoeia as drugs by themselves or drugs intermediate. Rather the products of the appellant are found by expert opinion to be Silicones in the primary form, of the grades specified. There is thus no basis herein to distinguish Silicone as industrially used or medicinally used.";