2001 (7) TMI 401 - AT - Central Excise

Summary

Issues:
Classification of "regrind polycarbonate" under the Customs Tariff.

Analysis:
The appeal in this case revolves around the classification of "regrind polycarbonate" imported by the appellant under the Customs Tariff. The Tribunal had previously held that such goods should be classified under Heading 3907.40 of the Customs Tariff, based on the fact that they were entirely made of polycarbonate, a single thermoplastic material, and were in one of the primary forms specified in the Chapter. This classification was in line with the provisions of Note 7 to the Chapter Heading 3915, which excludes waste, parings, and scrap of a single thermoplastic material transformed into primary forms from being classified under Heading 39.15. The Tribunal's decision was cited by the importer in response to a show cause notice proposing to treat the goods as scrap.

In response to the importer's citation of the Tribunal's decision, the Commissioner found that the provisions of Note 3 to Chapter 39 of the Tariff were not considered in the earlier consignment's notice, and thus, the Tribunal's decision was not applicable. Note 3 specifies that Heading Nos. 39.01 to 39.11 apply only to goods produced by chemical synthesis falling into specific categories, which raised a contention regarding the classification of scrap of a single thermoplastic material transformed into a primary form.

The Tribunal, upon examining Note 3, concluded that it does not preclude the classification of scrap of a single thermoplastic material under the first eleven headings of Chapter 39. Note 3 provides guidelines for classification based on the origin or level of polymerization of goods, while Note 7 excludes goods made of a single thermoplastic material from being classified as waste, parings, or scrap. The Tribunal emphasized that Note 3 and Note 7 serve different purposes in classification and do not conflict with each other.

Furthermore, the Tribunal noted that the Commissioner's refusal to follow the Tribunal's earlier order was unjustified, as the facts and issues in both cases were identical. The Commissioner's failure to apply the Tribunal's earlier order based on the absence of Note 3 in the initial notice was deemed improper. The correct course of action for the Commissioner, if he disagreed with the Tribunal's decision, would have been to seek its set aside through legal means. Ultimately, the Tribunal allowed the appeal and set aside the impugned order, affirming the classification of the goods under Heading 3907.40 of the Tariff and 390740 00 of the Policy.