ORDER
S.K. Bhatnagar, Vice President
1. These are appeals which have been filed with reference to the order of Collector (Appeals) dated 18-11- 1993.
2. Ld. Counsel stated that the issue relates to the classification and rate of duty of their product ultramarine blue some of which are cleared by them in large packings and other in small packings.
3. The department has accepted that ultramarine blue is classifiable under Heading 32.06.90 in respect of large packings but has classified the same product in small packings under 3212.90 in view of words dyes and other colouring matter put in forms (for example balls, tablets and the like) or small packings (for example sachets or bottles of liquid) of a kind used for domestic or laboratory purposes’.
4. It was their contention that once their product was held as classifiable under Heading 32.06 it should remain classified under that heading irrespective of the size of packing because there is no such distinction made under that heading.
5. It was also their contention that it was not a pigment of the type falling under Heading 32.12. In this connection, he would like to rely upon the Andhra Pradesh High Court judgment in the case of Reckitt and Coleman, reported in 1994 (72) E.L.T. 263.
6. At the time of Stay Application, the Ld. D.R. had referred to the judgment of Calcutta High Court in the case of Seth Chemical Works, reported in 1993 (67) E.L.T. 48 but that judgment was with reference to the old Tariff whereas the Andhra Pradesh High Court judgment is with reference to the new Tariff which is the relevant Tariff for the purposes of this case.
7. The Andhra Pradesh High Court judgment also in fact takes note of the Calcutta High Court judgment and the Supreme Court judgment with reference to a Gujarat High Court judgment [reported in 1979 (4) E.L.T. 298] in their own case.
8. It was also his submission that since the department has no case on merits, it has also no case with reference to time bar.
9. The Ld. D.R. states that although the case is covered by the judgment of Hon’ble Andhra Pradesh High Court, he would like to reiterate the department’s view in view of the Calcutta High Court judgment.
10. Ld. Counsel stated that he would also like to draw attention to the Customs Tariff in which the Heading 32.06 is identically worded but this heading includes a sub-heading which specifically mentions ultramarine blue.
11. We have considered the above submissions. We observe that the contentions of the Ld. Counsel are strong in force. In our opinion the colouring matters classifiable under 32.06 and 32.12 are distinguishable. As mentioned by Hon’ble Andhra Pradesh High Court in the case of 32.12 the words ‘other colouring matter’ have to be of the nature of dyes as independently they have no meaning and have to be read in the context of the word dye which precedes the word ‘other colouring matter’. (The High Court itself has referred to HSN in this respect to exclude Heading 32.12).
12. In the present case, admittedly, it is an inorganic preparation which is further in a powder form. We also note that ultramarine blue has been described as follows in Condensed Chemical Dictionary by G.G. Hawley :
ULTRAMARINE BLUE.
Properties : Inorganic pigment; blue powder; good alkali and heat resistance; low hiding [powder]; poor acid resistance; poor outdoor durability; noncombustible; low toxicity.
Derivation : Heating a mixture of sulfur, clay, alkali, and a reducing agent at high temperatures.
Containers : Barrels; fiber drums; multiwall paper bags.
Uses : Colorant for machinery and toy enamels; white baking enamels; printing inks; rubber products; soaps and laundry blues; cosmetics; textile printing.
13. The ultramarine blue used for household purposes is not considered as a pigment by the common man as observed by the Hon’ble Gujarat High Court but the ultramarine blue is apparently used as a colorant for other purposes also.
14. The Customs Tariff which is identically worded also classifies it under 32.06.
15. Both the sides have considered it as other colouring matter and there is no dispute in this aspect before us and we take note of the fact that 32.06 under the Central Excise Tariff as it stood at the relevant time and 32.06 in the Customs Tariff are identically worded and it is included therein under the sub-heading ‘other colouring matter and other preparations’ as 3206.41.
16. In the circumstances, we hold that this material is classifiable under 32.06 and since this heading does not distinguish between larger or smaller packings or that for domestic, laboratory or other uses therefore the material will remain classifiable under this heading irrespective of packing and use.
17. In view of above position, we accept the appeal (with consequential relief, if any due) of M/s. CMC. (India) and dismiss the appeal of the department as their case automatically falls through in view of above decision.