M/S. Deepak Agro Solution Ltd vs Commissioner Of Customs, Maharashtra

2. Appellant imported 200 MT of "Brimstone 90". The certificate of analysis available on record shows the Sulphur content of the imported 2 goods was 90.10 % , inert filler (Bentonite) at 9.60 % and, the moisture content was 0.30 %.

4. Appellant filed the bills of entry on 31st May, 2004 classifying the goods under "Heading 25.03" of the Customs Tariff. However, the Deputy Commissioner of Customs by his order dated 7th July, 2004 opined that the imported goods were classifiable under "Heading 38.08"

7. Respondent preferred an appeal thereagainst before the Customs, Excise and Service Tax Appellate Tribunal. A Division Bench of the 4 Tribunal was of the opinion that its earlier decision in Deepak Fertilisers and Petrochemicals Corporation Ltd. (supra) was not correct. It referred the matter to a Larger bench stating :-

The Larger Bench of the Tribunal, however, by its order dated 27th January, 2006 came to the conclusion that the said goods were classifiable under "Heading 3808.19 (sic) 3808.90". 5

(c) The elements of this Sulphur based fertilizer process system is that the Liquid Sulpher arrives from the refinery at a temperature of 135o C and is pumped to a mixing vessel of approximately 25 cubic meters volume which contains a specially designed uniter Powered Bentonite, along with other agents, is fed into the liquid Sulphur and a homogeneous mixture obtained by intense stirring. The mixture is then pumped through a uniquely designed filtration sytem into the Rotoform System. Which consists of a Rotoform feed unit and a Sandvik steel belt cooler. Pastilies are discharged at the end of the steel belt cooler into bags which are then Palletised for shipping."

" Manufacturing Process of Brimstone 90 We are submitted herewith the brief manufacturing process of Brimstone 90 received from our principals National Establishment for Agricultural and Industrial Sulphur. They receive molten sulphur from the refinery. It is pumped to a mixing vessel, which contains specially designed unit. Powdered bentonite along with other agent is fed into the liquid sulphur & a homogenous mixture is obtained by intense stiring. The mixture is then pumped through a uniquely designed filtration system into the roto form system, which consist of a roto form filtered unit & sandvik steel belt puller. The product from the steel belt puller is discharged into the bags which are then palletized for shipping."

15. Entry 2503 speaks of Sulphur of all kinds other than those which are specifically mentioned therein. It is, therefore, evident that the said entry is of broad nature. Indisputably the product does not come within the purview of the excluded category.

"crude sulfur - commercial nomenclature for 12 elemental sulfur; may be bright or dark but is free of arsenic, selenium, and tellurium."

(3) Unrefined sulfur obtained by the roasting pyrites or by the treatment of other sulfur minerals.

40. We are, therefore, of the opinion that the Tribunal was not correct in its view.

41 For the aforesaid reasons the impugned judgment cannot be sustained and it is set aside accordingly. The appeal is allowed with no order as to costs.

......J. ( V.S. SIRPURKAR ) New Delhi May 8, 2008