ORDER
V.K. Agrawal, Member (T)
1. The issue involved in this appeal, filed by the Revenue, is whether product manufactured by M/s. Tuftween Petrochemical Ltd., is classifiable under Heading 27.10 of the Schedule to the Central Excise Tariff Act as claimed by it or under Heading 38.14 as claimed by the respondents.
2. We heard Shri Vikas Kumar, learned SDR for Revenue and Shri Bipin Garg, learned Advocate for the respondents.
3. The impugned product is known as organic composite solvent, which is obtained by mixing of raw materials in various ratios under room temperature and pressure in the tankers of the consignee itself through pumping from the raw material storage tanks. The Deputy Commissioner, under the Order-in-Original No. 36/02, dated 20-9-2002 classified the product under subheading 2710.19 of the Tariff and confirmed the demand of duty on the ground that the impugned product is a combination of inputs of Chapter 27 or Benzene under Chapter 29 in variable ratio. However, on appeal, filed by the respondents, the Commissioner (Appeals), under the impugned Order, has set aside the Order-in-Original on the ground that there is no evidence to show that the impugned product satisfies any of the criteria for classifying the same under Heading 27.10. The Commissioner (Appeals) has given his finding that a product can be classified under Heading 27.10 if the following three criteria as laid in the tariff are satisfied –
(i) product must be hydrocarbon oil,
(ii) product must have flash point below 25 Degree C, and
(iii) product must by itself or in admixture with any other substance suitable for use as fuel in spark ignition engines.
The Commissioner (Appeals) has also relied upon Tribunal’s decision in the case of Jagdamba Petroleum (P) Ltd., 2004 (163) E.L.T. 88 (T) wherein the Tribunal, dealing with the similar situation, has observed that “there is no evidence on record to show that the goods under consideration are suitable for use as fuel either by themselves or in admixture with any other substances, in spark ignition engine. The Chemical Examiner’s report is of no use in so far as this suitability condition is concerned. Hence, the decision of the adjudicating authority classifying the goods under sub-heading 27.10 is not sustainable.” A perusal of the grounds of appeal reveals that the Revenue has not adduced any material or evidence to show that the impugned product either by itself or in admixture with any other substance is suitable for use in spark ignition engine. As rightly held by the Commissioner (Appeals), a product will be classifiable under Heading 27.10 only if this condition is satisfied. In absence of any material to show the suitability of the product for such use, it cannot be classified under Heading 27.10. There is no substance in the contentions raised by the Revenue in their grounds of appeal that the classification is being made on the basis of predominance contained in the final product. As per the interpretative rules, classification has to be determined according to the terms of the heading and in the present matter heading requires that the product should be hydrocarbon oil having flash point below 25 degree C and suitable for use as fuel. If the requirements, mentioned in the heading are not fulfilled, the product cannot be classified under this heading merely on the basis of pre-dominence of the inputs. Accordingly, there is no merit in the appeal which is rejected.