9911796707
TMI Blog1991 (2) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... es and market the same under their own brand name. The appellants contend that the dual pack marketed with brand name brings into existence a different and distinct marketable product. The respondents have accepted the excisability of this product and had filed classification list for assessment under Tariff Item 68. The question pertains to the correct classification of the final product marketed in a dual pack at a much higher value and assessable under T.1.15A(1) of CET. In his order, the Collector of Central Excise (Appeals) has held that the classification under Tariff Item 15A as a new product is incorrect and set aside the order of classification under Tariff Item 15A CET. The case of the appellant is that the goods are sold as Resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions, the appellants have raised the issue on classification, whether the product in the dual packing will come under Tariff Item 15A or Tariff Item 68 and claim that the Collector (Appeals) order, relying on the case M/s. Indian aint Colours and Varnish Company Limited, Calcutta reported in 1983 (13) E.L.T. 998 actually supports their view point and classification under Tariff Item 15A(1) is urged. The respondents on the other hand have shifted the grounds on which the appellant has filed the appeal and adduced a fresh ground that the process of dual packing does not amount to manufacture. On perusing the case laws cited by them, the relevant case law is that of Hindustan Petroleum Corporation Limited, v. Collector of Central Excise, rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being mixed. This being an entirely fresh ground entitling them to payment of the excise duty paid, the proper course for the respondents should have been to obtain the sanction of the Tribunal for urging this fresh ground as per Rule 10 of the CEGAT Procedure Rules. The following case laws are relevant; (i) 1989 (41) E.L.T. 522, Gaurav Paper Mills v. Collector, (ii) 1986 (25) E.L.T. 225 in Lohia Machines Ltd. v. Collector. 7. Taking up the appeal of the appellant, it is seen that the dual packing consists of Resin and Hardeners. The Collector of Central Excise (Appeals) has relied on M/s. India Paints Colour Varnish Company. The ratio of this judgment is as follows; The lower authorities interpretation is not sustainable because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character such as might happen by co-polymerisation or some such chemical modification when it entered into solutions in the organic solvent e.g. isoprophyl alcohol or toluene; nor have the Central Excise authorities made such a finding. Furthermore, the Excise authorities have not challenged the assessee s claim that the two substances epoxy and the catalyst, in separate packs, are used together to make zinc rich epoxy primer. There is good reason for saying that the two should, for assessment, form one common substance meant to be used as one and actually used so (a primer/paint). In the said judgment, the usages as a common substance has been taken to be the criteria for assessment as a paint under Tariff Item 14-I-(5) of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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