2000 (8) TMI 315 - AT - Central Excise

Dermafill CC-20 and Dermafill CC-21, is an emulsion within the scope of exemption notification No. 53/88-C.E.

Summary

Issues:
1. Benefit of Notification No. 53/88 dated 1 March, 1988 - whether items DERMAFILL CC-20 and DERMAFILL CC-21 are exempted under Sr. No. 9 of the notification.

Analysis:
The appeal before the Appellate Tribunal CEGAT, New Delhi pertained to the denial of the benefit of Notification No. 53/88 dated 1 March, 1988, concerning the items DERMAFILL CC-20 and DERMAFILL CC-21. The central issue revolved around whether these items were exempted as per Sr. No. 9 of the said notification. The Collector of Central Excise, Bombay, had passed an order on 17-5-1993, which was challenged in the appeal.

The Show Cause Notice issued proposed to deny the benefit of Notification No. 53/88 and apply the duty rate under Sr. No. 42 of the same notification. The contention was whether the items in question fell under the criteria specified in Sr. No. 9 for exemption or if they should be taxed under Sr. No. 42. The appellant argued that the items were homopolymer and copolymer resin emulsions based on acrylic monomers, while the department claimed they were not emulsions but solutions. Discrepancies arose from reports by the chemical examiner and the IIT, with the former stating the items were in the form of a solution and the latter indicating they were emulsions.

Upon thorough consideration, the Tribunal analyzed the wording of Notification 53/88, which exempted items if they were homopolymer and copolymer emulsions based on acrylic and/or vinyl monomers. It was noted that the items in question were indeed emulsions, and the benefit had been denied on the basis that they were not emulsions exclusively. However, the Tribunal found no such restriction in the notification for denying the exemption based on exclusivity. The adjudicating authority had acknowledged that the items were partially emulsions, leading to the conclusion that the benefit could not be denied solely on the grounds of exclusivity. Therefore, the Tribunal accepted the appellant's plea and allowed the appeal.

In conclusion, the judgment emphasized the importance of adhering to the specific criteria outlined in notifications for granting or denying exemptions, highlighting that the absence of an exclusivity requirement in this case led to the allowance of the appeal.