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TMI Blog1990 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... to note the Chief Chemist's Test Report No. 40-Cus/86 dated 9-12-1986. They have relied on the excerpts of the Chief Chemist's report, which are reproduced below - "The samples are aqueous emulsions of synthetic resin, polyvinyl acetate.... these emulsions merit classification only under Chapter 39". The Revenue have further submitted that the report of Central Revenue Control Laboratory, New Delhi is more reliable and authentic compared to independent analyst and hence the decision based on the report issued by M/s. Italab (P) Ltd. is not correct in law. They have further submitted that the sample tested by M/s. Italab (P) Ltd., Bombay was not a representative sample and the same was not drawn in the presence of Customs officials. They have assessed that the impugned goods being aqueous emulsions of synthetic resin polyvinyl acetate, they are correctly classifiable under heading 3905.11 (if the pickings are more than 1 kg) as resins and not prepared glues under Chapter 35. However, the Revenue admits that the goods in 1 kg pickings are covered under Chapter heading 35 which can be used as adhesive but they are not covered by Customs Notification No. 136/86 since these are not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment had denied them the benefit of C.N. 342/76. They have submitted that rate of duty chargeable under Chapter 39 would be only 50% plus 40% plus C.V. duty 40% totaling to 166% while the duty already paid by them was 176%. 4. The learned Collector after examining the contentions of the importer and the documents placed before him, upheld their contentions and set aside the order of the Assistant Collector of Customs, Madras. The learned Collector has observed that the importer had placed the test report of M/s. Italab (P) Ltd. which stated as follows - "Total solid contents - 49.17% ww Polyvinyl Acetate content - 39.95% Polyvinyl Alcohol content - 7.83% Plasticisers - 1.74% Inorganic fillers - 0.25% Moisture by (D&S) - 50.23%" and had sought the Department to have the goods tested in their laboratory including Customs laboratory if they so desired but the Customs laboratory had, however, expressed their inability to further analyse the product and confirm deny the presence of other materials - apart from the main Vinyl acetate as they did not have the necessary sophisticated equipment to test small amount of polyvinyl alcohol, plasticisers, if any, in the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsion is applied to a substrate and during which a good functional bond may be formed", The learned Collector, basing on these references from Technical publications, has held that the impugned goods could be classifiable under Chapter 35. He has held that 1 kg containers are assessable under heading 3506.10 CTA, 5 kg and 18 kg tins under heading 3509.91 CTA. The Collector has held that the appellants have also claimed the benefit under C.N. 136/86 (Sl. No. 78) which is applicable for prepared glues. There is no speaking order as to why this benefit was not extended at the time of original assessment under Chapter 35. The appellants plea for issue of a speaking order was never responded to. There is no reason as to why that benefit, once it is established that the primary resin has been converted/prepared into an adhesive by addition of other ingredient, be not given. It has also been established by CEGAT judgment in M/s. Nevichem Synthetic Industries Bombay v. Collector of Central Excise, Bombay [1984 (17) E.L.T. 460], by quoting from 'Handbook of Adhesives' edited by Irving Skeist, that adhesives based on synthetic resins are also known as synthetic glues. Therefore, the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apter Heading 35 of CTA without grant of benefit under the relevant notification. He submitted that the report of M/s. Italab (P) Ltd. was presented to the Department even before the assessment and clearance of the goods by requesting the Department to subject the goods for retest. The Laboratory had sent a reply that it did not have the equipment. The learned Collector had referred to these facts in his findings and had rightly held that the test report of M/s. Italab (P) Ltd. had not been contested by the Department. He further submitted that samples had not been sent to the Chief Chemist and without samples being sent, his opinion had been sought in this matter and hence the learned Collector was right in not relying on the same. He further submitted that the Department had not issued a speaking order for one year despite goods being in custody and requests being made on five occasions. Meanwhile, demand notice for payment of Rs. 22,215/- had been made without affording any personal hearing not indicating under the heading under which the amount was demanded. He submitted that he approached the Public Grievance Committee and on whose directions, the Asstt. Collector of Customs h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 3506.91 of H.S. of Tariff, is not correct. This heading does not have anything to do with the size of the packing. The only question relevant for this heading is whether by their composition as well as use, they are nothing else but 'prepared glues or other prepared adhesives' and whether they are specified or included elsewhere. In the case in question had the adhesives 403 and 405 been imported in packings bigger than 1 kg. they would merit assessment only under Chapter 39 because such materials are included in that chapter under sub-heading 3905.11. Their use as glue or adhesive is only among other uses. The additional limiting condition regarding the size of packing is incorporated in 3506.10 in order that, when used in adhesives they can be classified under that heading subject to the said condition. Coming to the Notification No. 136/86, the expression 'prepared enzymes and glues' cannot cover 'products suitable for use as glues or adhesives' falling under sub-heading 3506.10. That expression would cover only those glues which, independent of the size of packing find use only as glues or adhesives, unlike those which are covered by heading 3506.10. Sd/- (Keshav Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the technical work 'Adhesion and Adhesives by R. Hokwinic & G. Solomon Vol. I. Reliance on the Kirk Othmer Encyclopaedia III Vol. 18 page 165 is also made to come to the conclusion that the impugned goods are adhesives. The finding of the learned Collector is, therefore, not assailable and has to be upheld. It is also to be observed that Chapter 39 deals with plastics and articles thereof. Chapter Heading 3905 reads "Polymers of vinyl acetate or other vinyl esters in primary forms, other vinyl polymers in primary form. Heading 3905.11 reads 'in aqueous dispersion'. Admittedly the impugned goods are not vinyl esters in primary form or other vinyl polymers in primary form. Chapter note 6 to Chapter 39 reads - "6 - In Heading Nos. 39.01 to 39.14, the expression "primary Forms" applies to the following forms - (b) Blocks of irregular shape, lumps, powders (including moulding powders) granule flakes and similar bulk forms". It is not the case of the Department that the impugned goods are in primary form either. Hence, the Chapter Heading 3905.11 of CTA 86 has to be ruled out. 12. The learned Collector has relied on the ruling of M/s. Nevichem Synthetic Industries (supra). It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, has rightly applied the ratio of the above ruling to come to the conclusion that the impugned goods are classifiable under heading 3506.10/3506.91 CTA read with C. Notification No. 136/86 and for CV duty purposes under heading 3501.90 of CTA 86. 12A The Revenue in this appeal is mostly relying on the letter of the Chief Chemist. It has to be observed that the letter of the Chief Chemist reads more like an order on classification. Time and again, the Tribunal and Courts have pointed out that the chemical examiner has to only give his findings and results on the test carried out by him and not enter into a dialogue or exceed from that limit in expressing his opinion in the form of an order regarding the classification of the product. It is hoped that such exercises are avoided. 13. The Revenue has sought for restoration of the order-in-original. As rightly pointed out by the learned Collector, the lower authorities have not given any speaking order at all. The importers had made several requests for issue of speaking order which has also not been responded to Shri K.L. Jain was at pains to explain how they were put to irrepairable loss and damage on account of the attitude of Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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