Case Law Details
In re Rays Import Inc (CAAR Mumbai)
Unlocking the Classification Mystery: Clean Bio Zinc (NSP) Under CTH 38089290 – A CAAR Mumbai Analysis
In the intricate world of customs and trade, classification of goods under the correct tariff heading is paramount for businesses to ensure compliance and optimize their operations. A recent ruling by the Customs Authority for Advance Rulings (CAAR), Mumbai, regarding the classification of Clean Bio Zinc (NSP) has shed light on the application of the Customs Tariff Act, 1975, offering clarity to importers and manufacturers alike. This article delves into the CAAR’s decision, elucidating the rationale behind classifying Clean Bio Zinc under CTH 38089290 and its implications for the industry.
Background of the Inquiry
M/s. Rays Import Inc sought an advance ruling from CAAR Mumbai on the correct classification of Clean Bio Zinc (NSP), a product imported and supplied to shampoo manufacturers. Clean Bio Zinc, characterized by its active ingredient Zinc Pyrithione, is acclaimed for its fungistatic and bacteriostatic properties, predominantly utilized in anti-dandruff shampoos.
The Contention and Inquiry
The applicant posited that Clean Bio Zinc, being a derivative of pyridine known for its efficacy against dandruff and seborrheic dermatitis, should be classified under a specific tariff heading that accurately reflects its chemical composition and intended use. The inquiry centered on whether Clean Bio Zinc (NSP) should fall under CTH 29333929/29333990, representing derivatives of pyridine, or under CTH 38089290/38089990, typically reserved for fungicides and similar products.
CAAR’s Analysis and Ruling
After a thorough examination of the product’s composition, uses, and the relevant legal and tariff frameworks, CAAR Mumbai concluded that Clean Bio Zinc (NSP) is aptly classified under CTH 38089290 of the Customs Tariff Act, 1975. This classification is grounded in the product’s fungicidal properties and its broad application in medical and cosmetic products, paints, and textiles.
Key Considerations in the Ruling
- Chemical Composition and Properties: Clean Bio Zinc’s primary component, Zinc Pyrithione, exhibits significant fungistatic and bacteriostatic capabilities, making it a cornerstone ingredient in anti-dandruff treatments and other antimicrobial applications.
- Legal and Tariff Frameworks: The ruling meticulously navigated through the Customs Tariff Act, 1975, the Insecticides Act, 1968, and corresponding international tariff classifications, affirming that the fungicidal nature of Clean Bio Zinc aligns it with CTH 38089290.
- Industry Implications: This classification underscores the need for businesses to consider both the chemical composition and the end-use of products for tariff classification, ensuring compliance with customs regulations and facilitating accurate duty assessments.
The Impact on Businesses
The CAAR’s ruling serves as a precedent for importers and manufacturers, emphasizing the criticality of proper goods classification in the customs process. For businesses dealing with chemical compounds and their derivatives, this case highlights the importance of presenting comprehensive data regarding the product’s composition, uses, and industry standards to align with the correct tariff heading.
Navigating Compliance and Strategic Planning
Understanding the nuances of tariff classifications can significantly impact a business’s operational efficiency, customs compliance, and financial planning. Companies are encouraged to engage with customs authorities, seek advance rulings when in doubt, and stay informed about changes in tariff codes and regulations to navigate the complexities of international trade effectively.
Conclusion
The CAAR Mumbai’s ruling on Clean Bio Zinc (NSP) classification is a testament to the intricate interplay between chemistry, commerce, and customs law. By demystifying the classification process for Clean Bio Zinc under CTH 38089290, CAAR not only provided clarity to M/s. Rays Import Inc but also offered valuable insights for the broader industry. As businesses continue to navigate the evolving landscape of international trade, staying abreast of such rulings and leveraging them for strategic planning becomes indispensable for compliance and success.
FULL TEXT OF THE ORDER OF CUSTOMS AUTHORITY OF ADVANCE RULING, MUMBAI
M/s. Rays Import Inc (having IEC No. 0315071435 and hereinafter referred to as ‘the applicant’, in short) filed an application (CAAR-1) for advance ruling before the Customs Authority for Advance Rulings, Mumbai (CAAR in short). The said application was received in the secretariat of the CAAR, Mumbai on 19.10.2023 (deficiency memo for the said application was issued and reply of the same was received on 01/11/2023) along with its enclosures in terms of Section 28H (1) of the Customs Act, 1962 (hereinafter referred to as the ‘Act’ also). The applicant is seeking advance ruling on the classification of Clean Bio Zinc (NSP).
2. As per application, applicant is importing Clean Bio Zinc (NSP) and supplying it to the manufacturers of Shampoo. Applicant has stated as follows in their statement of relevant facts having a bearing on the question(s) raised enclosed with the CAAR-1 application:
2.1 DESCRIPTION OF THE PRODUCT:
(a) Clean Bio TM-Zinc (CAS No.13463-41-7) is 48% aqueous dispersion of Zinc Pyrithione as an active ingredient that has ultra-fine particles of zinc Pyrithione, a dispersant and a stabilizing agent. Copy of product literature provided by foreign supplier M/s. Kolon Life Science, Inc., Korea, is submitted by the applicant.
(b) Pyridine is an aromatic heterocyclic series characterized by a six-membered ring structure composed of five carbon atoms and one nitrogen atom. The simplest member of the pyridine family is pyridine itself, a compound with molecular formula C5H5N.
(c) Pyridine N-oxide.
Oxidation of pyridine occurs at nitrogen to give pyridine N-oxide. The oxidation can be achieved with peracids
C5H5N + RCO3H C5H5NO + RCO2H
Some electrophilic substitutions on the pyridine are usefully effected using pyridine N-oxide followed by deoxygenation. Addition of oxygen suppresses further reactions at nitrogen atom and promotes substitution at the 2- and 4-carbons. The oxygen atom can then be removed, e.g., using zinc dust.
(d) Pyrithione is the conjugate base derived from 2-mercaptopyridine-N-oxide (CAS# 1121-31-9), a derivative of pyridine -N-oxide.
e) The Pyrithione ligands, which are formally monoamines, are chelated to Zn2+ via oxygen and sulfur centers. In the crystalline state, zinc Pyrithione exists as a centrosymmetric dimer, where each zinc is bonded to two sulfur and two oxygen centers. In solution, however, the dimers dissociate via scission of one Zn-O bond. Hence, it also acts as a dispersing / stabilizing agent in any formulations.
(f) Zinc Pyrithione (or Pyrithione zinc) is a coordination complex conjugated base of zinc. It has fungistatic (inhibiting the division of fungal cells) and bacteriostatic (inhibiting bacterial cell division) properties and is used in the treatment of seborrheic dermatitis and dandruff.
(g) Zinc Pyrithione Uses:
Medicine:
Zinc Pyrithione can be used to treat dandruff and seborrheic dermatitis. It also has antibacterial properties and is effective against many pathogens from the Streptococcus and Staphylococcus genera. Its other medical applications include treatments of psoriasis, eczema, ringworm, fungus, athletes’ foot, dry skin, atopic dermatitis, tineaversicolor and vitiligo.
Paint:
Because of its low solubility in water (8 ppm at neutral pH), zinc pyrithione is suitable for use in outdoor paints and other products that protect against mildew and algae. It is an algaecide.
Clothing:
Zinc pyrithione is used to prevent microbe growth in polyester. Textiles with applied zinc pyrithione protect against odor-causing microorganisms.
(h) Department of Chemistry, Kansan National University, Gunsan 573-701, Republic of Korea in the report pertaining to Recyclable Anhydride Catalyst for H202 Oxidation, specifies Zinc Pyrithione as N-Oxidation of Pyridine Derivatives.
(i) M/s. Hindustan Unilever Limited vide certificate dated 07/09/2023 certifies that Clean Bio Zinc (NSP) will only be used for manufacturing of Anti Dandruff Shampoos.
(j) Foreign suppliers M/s. Kolon Life Science, Inc., Seoul, Republic of Korea, vide their certificate dated 6.7.2023 certify that the end use of Clean-Bio Zinc (NSP) is for manufacturing Anti Dandruff Shampoo and they also suggest its classification under HS Code 293339.
3. Applicant’s Interpretation and contention is as follows:
3.1 It would be evident from the description, literature, reports and the usage of the Zinc Pyriothione, that Pyridine is the principle organic compounds of the aromatic heterocyclic series characterized by a six-membered ring structure composed of five carbon atoms and one nitrogen atom. Oxidation of pyridine occurs at nitrogen to give pyridine N-oxide.
3.2 Pyrithione is the conjugate base derived from 2-mercaptopyridine-N-oxide (CAS# 1121-31-9), a derivative of pyridine -N-oxide. The oxygen atom can then be removed, using zinc dust. In the crystalline state, Zinc Pyrithione exists as a centrosymmetric dimer, where each zinc is bonded to two, surfer and three oxygen. Zinc Pyriothione has a long history of use in medicated shampoos to treat dandruff and seborrheic dermatitis.
3.3 The Customs Tariff Act 1975, Chapter 2933 covers the following:
| HETEROCYCLIC COMPOUNDS WITH NITROGEN HETERO- ATOM(S) ONLY. | |
| 2933.39 | Other |
| Derivatives of pyridine: | |
| 2933 39 11 to | Amino Pyridine |
| 2933 39 22 | Imazethapyr (ISO) |
| 2933 39 29 | Other. |
3.4 HSN Explanatory Notes of Chapter 29, Sub-Heading Notes prescribe:
Within any heading of this Chapter, derivatives of a chemical compound (or group of chemical compounds) are to be classified in the same subheading as that compound (or group of compounds) provided that they are not more specifically covered by any other subheading and that there is no residual subheading named “Other” in the series of subheadings concerned.
3.5 Sub heading 2933 39 states —other: — Derivatives of Pyridine —- under tariff entry 2933 39 11 to 2933 39 22 specify various types of derivatives of pyridine, but does not specify Pyrithione Zinc. However, heading 2933.39 specifies residual subheading Other – 2933.39.29. Therefore, Zinc Pyrithione being a derivative of Pyridine would be classified under CTH 2933.39.29 — Other.
3.6 Jawaharlal Nehru Custom House at Nhava Sheva is classifying Zinc Pyrithione under Heading 3808 as Pesticides (Fungicides). The NI DB data retrieved from Zauba.com and volza.com shows classification of Zinc Pyrithione under CTH 38089290—others as well as under CTH 29333919/29333990- as other Derivatives of Pyridine. Copy of import data downloaded from Volza.com & Zauba.com is also submitted.
3.7 On the basis of literature/Wikipedia and other relevant reports from the universities, it is seen that Zinc Pyrithione is a derivative of Pyridine. Derivatives of Pyridine are appearing specifically under Sub heading 2933.39 and relevant tariff entry 2933 39 29- others.
3.8 Classification of the imported goods in the Nomenclature is governed by the principles laid down under General Rules for the Interpretation of Import Tariff.
Rule 2(b) prescribes – Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3.
Rule 3(a) prescribes when by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
3.9 Zinc Pyrithione is a derivative of Pyridine. Derivatives of Pyridine are appearing under Sub heading 2933 39. Various derivatives of Pyridine have been specified under tariff entry 2933 39 11 to 2933 39 22. On perusal of the entries, it is found that Zinc Pyrithione although derivative of Pyridine is not appearing in the above tariff entry.
3.10 In terms of sub-heading Note 1 of Chapter 29, wherein, derivatives of a chemical compound (or group of chemical compounds) are to be classified in the same subheading as that compound (or group of compounds) provided that they are not more specifically covered by any other sub-heading arid that there is no residual subheading named “Other” in the series of subheadings concerned. Since derivative of pyridine sub-heading 2933 39 specifies entry others, the classification of Zinc Pyrithione in terms of the above note would fall under tariff entry 2933 39 29 — other derivatives of pyridine.
3.11 Zinc Pyrithione is classified as Pesticides (Fungicides) under CTH 3808, tariff entry 3808 92 90 —other and 3808 99 90 — other. The above tariff entries are generic one. Whereas, derivative of pyridine appears specifically under subheading 2933 39. Therefore, all derivatives of pyridine whether covered specifically or under tariff entry ‘other’, would be covered under the above subheading 2933 39. GIR Rule 3(a) prescribes specific entry will prevail over the generic description for the classification of the goods. Derivatives of pyridine is a specific entry under sub heading 2933.39. Consequently, Zinc Pyrithione being a derivative of pyridine the classification will fall under the sub 2933 39 tariff entry 2933 39.29 —others, as more specific and not the generic one. Thus, in terms of GIR Rule 3(a) the classification of Zinc Pyrithione would fall under 2933 39 29 —other and not under CTH 3808- as Fungicides (tariff entry 3808 92 90).
4. JNCH, Nhava Sheva-I which is the concerned jurisdictional Customs Commissionerate has responded to the subject application vide letter dated 19.12.2023 and the same is reproduced as under:
Clean Bio Zinc is 48% aqueous dispersion of Zinc Pyrithione, which is widely used in cosmetics or personal products. Clean Bio Zinc bactericide-fungicide is the most effective anti-dandruff agent especially used in shampoo.
Zinc Pyrithione is a fungicide and falls under the Insecticide Act, 1968, as published in the Indian Gazette for list of insecticides on June 1, 2023. Zinc Pyrithione falls under the category of fungicide, which are appropriately categorized under CTH 3808.
According to the explanatory notes of 3808, the below is covered by the CTH.
‘Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, Sulphur-treated bands, wicks and candles, and fly-papers).’
Additionally, fungicides have a particular heading of 380892 under the Customs Tariff Act of 1975.
Also, as per Explanatory notes of Chapter 29 (D) (2) ‘Certain other separate chemically defined organic products, which would otherwise have been classified in Chapter 29, may be excluded when put up in certain forms, or if they have been subjected to certain treatments which leave their chemical composition unchanged. Examples are (h) Disinfectants, insecticides, etc put up as described in heading 3808.
It is submitted that as per Customs Tariff Act. 1975 and Explanatory Notes Clean Bio Zinc (NSF) is appropriately and rightly classifiable under CTH 38089290 which requires CI B/RC Certificate as per the Insecticide Act, 1968.
5. A personal hearing in the matter was conducted on 16.01.2024 in office of the CAAR, Mumbai. During the personal hearing the authorized representatives of M/s. Rays Import, Advocates Shri Anil Balani and Priyasha Pawar, both reiterated their contentions filed in the application to CAAR, Mumbai. They explained that their product Clean Bio Zinc (NSP) merit classification under 29333929 or 29333990 as against 38089290/38089990 as contended in reply by the department. In rebuttal to Department’s comments, Applicant further submitted that:
a. Heading 38 08 reads as under:
“Insecticides, rodenticides, fungicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles”
Item 380892 reads as “fungicides” and Residuary Entry 38089290 covers “other fungicides”.
b. On the other hand, entry 29333919 specifically covers other derivatives of Pyridine like Zinc Pyrithione, the product under consideration.
c. Zinc Pyrithione is not classifiable under CTH 3808 because it is not put up in form or packing for retail sale or as ‘Preparation’ or ‘Article’
d. Further Chapter Note 1 makes it clear that chapter 38 does not cover separate chemically defined elements or compounds.
e. Heading 38.08 will be attracted only when the product is put up in packing for retailed sale so that there is no doubt that they will be sold by retail. Heading 38.08 will also be attracted if the product is put up as ‘Preparation’ or as an ‘Article’.
f. Without prejudice to the above reliance is placed on the CBEC instruction dated 22.06.2011 which quotes Section 38 of the Insecticides Act to the effect that nothing in the Act shall apply to any substance included in the Schedule if such substance is intended for purpose other than preventing insects etc.
g. In the cases of Shakti Chemicals Shakti [2017 (357) E.L.T. 522 (Tribunal)] and Veritas Exports [2017 (357) E.L.T. 350(Tribunal)], Boric Acid was held to be classifiable under Chapter 28 since the import was by Traders, Registration under the Insecticides Act was held to be not required, although Boric Acid is specified in the Schedule.
h. In the case of Pankaj Kumar & Co. [2018 (363) E.L.T. 526 (Tri. – Mumbai)] the CESTAT held that although ‘Thiourea’ was included in the Schedule it was classifiable under Chapter 29 and Registration was not required.
i. In the case of M.B. Sales Corporation [2007 (213) E.L.T. 50 (Tri.-Mumbai)], ‘Sodium Cyanide’ was classified under Chapter 28 and not under heading 38.08 although it is covered under the Insecticides Act.
j. In the case of M. Chandrashekar [2018 (364) E.L.T. 33 (Ker.)] ‘Ethylene Dichloride (EDC)’ was classified under Chapter 29 because it was not put up in packing for retail sale.
Further, the applicant submitted the flow chart of Zink Pyrithione as below:
Flow Chart of Zinc Pyrithione
Pyridine
↓
Oxidation
↓
Pyridine-N-Oxide
↓
Zinc Cholopyridine -N-Oxide
↓
Zinc Pyrithione
a. ‘Pyridine’ is used as a solvent and to make many different products such as medicines, vitamins, food flavouring, pesticides, paints, dyes, rubber products, adhesives, and waterproofing for fabrics. (cdc gov-https://wwwn.cdc.gov > TSP ) PHS ) PHS).
b. As per the Wikipedia ‘Pyridine’ is a basic heterocyclic organic compound with the chemical formula CSH5
c. Pyridine-N-oxide is the heterocyclic compound with the formula C5H5
d. The N-oxides of various pyridines are precursors to useful drugs like ‘2-chloropyridine N-oxide’ is a precursor to the ‘fungicide zinc pyrithione’.
e. `Pyrithione’ is a common name of an organosulfur compound with molecular formula C5H5NOS, chosen as an abbreviation of `pyridinethione’. It is used to prepare zinc pyrithione, which is used primarily to manufacture anti-dandruff shampoos.
f. The conjugate base of pyrithione (pyrithionate ion) is an anion containing two donor atoms, a sulfur atom and an oxygen atom each bearing a negative formal charge; the nitrogen atom remains formally positively charged. The thiolate anion can be formed by reaction with sodium carbonate, and zinc pyrithione is formed when zinc chloride is added.
g. ‘Pyrithione’ is the conjugate based derived from 2-mercaptopyridine-N-oxide (CAS#1121-31-9), a derivative of Pyridine-N-oxide.
h. The information from Department of Chemistry, Kusan National University confirms that Zinc Pyrithione is a Pyridine derivative.
6. I have taken into consideration all the materials placed on record in respect of the subject goods. I have gone through the response received from Nhava Sheva -I, JNCH. I therefore proceed to decide the present application regarding, whether the goods viz. Clean Bio Zinc (NSP) are classifiable under CTH 29333929/ 29333990 or under CTH 38089290/38089990 of the Customs Tariff on the basis of the information on record as well as the existing legal framework having bearing on the classification of the products in question under the first schedule of the Customs Tariff Act, 1975.
As per the texts and literature available in the open sources and as contended by the applicant themselves it can be seen that Zinc Pyrithione (or pyrithione zinc) is a coordination complex of zinc. It has fungistatic (inhibiting the division of fungal cells) and bacteriostatic (inhibiting bacterial cell division) properties. As per an online open access literature published on 14 august 2018 in the renowned science journal ” Nature” under the heading ” Understanding the mechanism of action of the Anti-dandruff agent Zinc Pyrithione against Malassesia Restricta”- (a genus of Fungi)-dandruff is known to be associated with Malassesia Restricta”. Zinc Pyrithion (ZPT) has been used as an ingredient in anti-dandruff treatment.
Clean Bio Zinc (Zinc Pyrithione) as a bactericide-fungicide is the most effective anti-dandruff agent especially used in shampoo. It can be used to treat dandruff, seborrheic dermatitis, psoriasis, eczema, ringworm etc. Because of its low solubility in water (8 ppm at neutral pH), zinc pyrithione is suitable for use in outdoor paints and other products that protect against mildew and algae too. .
6.1 It is to underline that Zinc Pyrithione also known as Bis (1-hydroxy-2(1H)- Pyridinethionato-o,$)-(T-4)zinc(ZPT) having CAS/CAS RN No 1 3463-4 1-7 and IUPAC/Chemical Abstract Name as 13.1.3b.zinc bis (2-thiolpyridine-N-oxide) specifically categorised under the category of insecticide/fungicide under the Insecticide Act, 1968..
The applicant themselves have submitted the various uses of this product as medicine, paint and clothing. It can be seen that the medicinal or antifungal property of the product Zinc Pyrithione (Clean Bio Zinc) is obvious as it is widely and extensively used throughout the world in manufacture of antifungal-antidandruff shampoo. It is also worth mentioning that due to antimicrobial quality this product is also used in paints and other products as a mildewcide and algaecide. Further in textile industry also, this zinc pyrithione is used as anti-microbial agent for protection against odor causing microorganism.
6.2 The section 3(e) of the Insecticide act 1968, defines Insecticides which is as follows;
Section 3 (e): Insecticide means:
(i) any substance specified in the schedule; or
(ii) such other substance (including fungicide and weedicide) as the central govt. may after consultation with the Board, by Notification in the official gazette include in the schedule from time to time; or
(iii) any preparation containing any one or more of such substance;
The schedule under section 3 (e) of the Insecticide Act 1968 lists Bis (1-hydroxy-2(1H)-Pyridinethionato- o,$)-(T-4)zinc(ZPT) also known as Zinc pyrithione ( with the CAS No 13463417 as Insecticide/ fungicide.
6.3 As per General Explanatory Note D(2)(h) to Chapter 29, ‘Disinfectants, insecticides, etc., put up as described in heading 38.08, which would otherwise have been classified in Chapter 29, may be excluded from chapter 29’.
Applicant has contended that classification of Clean Bio Zinc would fall under tariff entry 2933 39 29 — other derivatives of pyridine. However, it can be seen that Clean Bio Zinc is 48% aqueous dispersion of Zinc Pyrithione. Hence by virtue of the condition the subject import goods does not seem to be included in heading 293339.
Further, as per the Explanatory Note the provision regarding classification of goods falling under heading 3808 is explained as follows: –
3808: Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packings for retail sale or as preparations or articles (for example, Sulphur-treated bands, wicks and candles, and fly-papers).
———————
———————
———————
3808.69 — Other
“”Other:
| 3808.91 | Insecticides |
| 3808.92 | Fungicides |
| 3808.93 | Herbicides, anti-sprouting products and plant-growth regulators |
| 3808.94 | Disinfectants |
| 3808.99 | Other |
These products are classified here in the following cases only.
(1) ——————
(2) When they have the character of preparations, whatever the presentation (e.g., as liquids, washes or powders). These preparations consist of suspensions or dispersions of the active product in water or in other liquids (e.g., a dispersion of DDT (ISO) (clofenotane (INN), (1, 1, 1-trichloro-2,2-bis(p-chlorophenyl) ethane) m water), or of other mixtures. Solutions of active products in solvents other than water are also included here (e.g., solutions of pyrethrum extract (other than standardised pyrethrum extract), or copper naphthenate in a mineral oil).
Intermediate preparations, requiring further compounding to produce the ready-for-use insecticides, fungicides, disinfectants, etc., are also classified here, provided they already possess insecticidal, fungicidal, etc., properties. Since Clean Bio-Zinc has fungicidal properties, it is rightly classifiable under CTH 3808.
Hon’ble Supreme Court of India in a number of decisions has held that HSN Explanatory Note is a safe and dependable guide in the matter of classification of items.
In the instant case the applicant has also submitted an undertaking from its proposed buyer that the said goods has to be further used in preparation of anti-dandruff shampoo. Applicant has contended that heading 3808 will be attracted only when the product is put up in packing for retailed sale. This contention is misplaced. It can be seen that the wording used in the ‘description of goods’ in the column 2 in the customs tariff is very comprehensive and elaborative. In fact, as per customs tariff, products specified under CTH 3808 are insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles.
It is clear that CTH 3808 not only covers products put up in forms or packing for retail sale but it also covers preparations or articles as well. Hence, the subject goods i.e. Clean Bio-Zinc, a preparation having fungicidal properties, falls under the purview of CTH 3808.
6.4 Reference in this regard is drawn to the judgement of the Hon’ble Supreme Court of India in the case of Union of India Versus Pesticides Mfg. & Formulators Association of India in Civil Appeal No. 3876 of 1999 [2002 (10) TM1 95 – SUPREME COURT] wherein the Hon’ble Court ruled on classification of technical grade of pesticides, insecticides etc. in bulk form. The Court observed that the rules of interpretation direct that the goods to be classified under a HSN would include its formulations and that the more specific heading should be preferred. If there are two such specific headings to which a product can be referred, the one occurring subsequently would prevail. Accordingly, the Hon’ble Supreme Court held that TGP, insecticides etc. in bulk form manufactured by the respondent are classifiable under HSN 3808, which deals with chemical compounds viz., insecticides, pesticides etc. with all its formulations and not under HSN chapters 28 and 29 occurring earlier which are general provisions relating to separate chemical compounds.
6.5 As per United Kingdom Customs tariff available online ( trade-tariff.service.gov.uk ) the preparation containing 38% or more but not more than 50% by weight of Pyriyhion Zinc (inn) cas m 13463417,in an aqueous dispersion categorically classified under CTH3808929040
6.6 Further, in an United States Ruling reference available online: NY N076524 dated 14th October 2009 Zinc Pyrithione Slurry is classified under tariff heading 3808 only.
The operative portion of the above ruling is reproduced as below:
……………………….
The subject merchandise, Zine Pyrithione slurry, is a preparation containing the Zinc Pyrithorine, water and anti-caking agent, dispersing agent, and a preservative blend. Zine Pyrithione inhibits the growth of fungi yeast, mold and bacteria. It is a broad spectrum biocide used as an industrial preservative, and active antibacterial ingredients, and anti-dandruff in shampoos, and in anti-fouling paints and sealants.
The applicable subheading for the zine parathion slurry will be 3808.99.0800, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Insecticides, rodenticides, fungicides, herbicides, anti-sprouting products and plant-growth regulators, disinfections and similar products, put up in forms or packing for retail sale or as preparations or articles….
7. The Case laws referred and relied upon by the applicant are in different perspectives and not squarely applicable in the present case in as much as: (a) ‘Boric Acid’, in case of Shakti Chemicals Shakti [2017 (357) E.L.T. 522 (Tribunal)] and Veritas Exports [2017 (357) E.L.T. 350(Tribunal)], is specifically covered under CTH 28100020; (b) ‘Thiourea’, in the case of Pankaj Kumar & Co. [2018 (363) E.L.T. 526 (Tri. – Mumbai)], is specifically covered under CTH 29309010; (c) ‘Sodium Cyanide’, in the case of M.B. Sales Corporation [2007 (213) E.L.T. 50 (Tri. – Mumbai)], is specifically covered under CTH 28371100. Similarly, ‘Ethylene Di-chloride (EDC)’, in the case of M. Chandrashekar [2018 (364) E.L.T. 33 (Ker.)] was classified under chapter 29 as it is)], is specifically covered under CTH 29031500.
8. On the basis of foregoing discussion and findings, I have come to the conclusion that ‘Clean Bio Zinc (48% aqueous dispersion of Zinc Pyrithione as an active ingredient)’ merit classification under Custom Tariff 3808, Specifically under CTH 38089290 of the First Schedule of the Customs Tariff Act, 1975 and I rule accordingly.
