S. B. Sinha, J. - (1.) Whether "Brimstone 90" which contains about 90% of Sulphur and 10% of Bentonite by way of inert filler would come within the classification under "Heading 25.03" of the Customs Tariff and the Central Excise Tariff or "Heading 38.08" is the question involved in this appeal.
(2.) Appellant imported 200 MT of "Brimstone 90". The certificate of analysis available on record shows the Sulphur content of the imported goods was 90.10%, inert filler (Bentonite) at 9.60 % and, the moisture content was 0.30%.
(3.) "Brimstone 90" was classified under the Customs Tariff heading 25.03 by the Customs, Excise and Service Tax Appellate Tribunal in the case of Deepak Fertilisers and Petrochemicals Corporation Ltd. vs. Commissioner of Customs, Nhava Sheva, 2002 (139) ELT 328. The Tribunal held :- "8. Elemental sulphur has wide use as a fertiliser. Elemental sulphur has to be oxidised to sulphate before it can be absorbed by the plant. The rate of oxidisation depends upon the surface area of the sulphur particles. Rapid oxidisation is possible where the particle size is small. The fine particles, however, create handling prob lems. They can also be blown away by wind. They may float on the irrigation water. To enable the sulphur to be applied in a safe manner it is mixed with other fertilisers such as phosphate, etc., or with inert fillers such as bentonite clay. Such mixture is applied to the plants. On application of water bentonite expands and disintegrates the sulphur particles surrounding it. Over the years 10% bentonite in the mixture has been established as appropriate. 9. The addition of bentonite clay does not alter the chemical properties of the sulphur particles. Therefore even in admixture of the bentonite the sulphur does not merit classification under any other tariff entry. The sulphur component of such mixture also continues to fall under the term unrefined sulphur. Therefore such unrefined sulphur tracing its origin in refinery processing natural gas, etc. of which it is a by-product would continue to merit the title unrefined sulphur with or with out mixture with bentonite." ;