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TMI Blog1997 (9) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of goods falling under Chapter 34. They filed a classification list effective from 1-4-1986 regarding various products declaring `DASOL PV' in Part III. This item is prepared out of polyvinyl alcohol powder purchased from market and diluted with water and is so produced without the aid of power. The classification list was approved by the Assistant Collector on 22-8-1986 with a remark `subject to positive test result'. The assessees, in the meanwhile, had effected clearances without payment of duty as the process did not amount to manufacture. 3. The authorities drew samples on 27-10-1986. The appellants also filed RT-12 returns and the same were assessed. 4. It was their contention that in the past, prior to 28-2-1986, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appeal stage, the Collector set aside the order of the A.C. and the matter was remanded for de novo proceedings with directions to furnish the report accordingly which was supplied subsequently and reads as under : "The sample is an aqueous (water) solution of synthetic resin polyvinyl alcohol." 10. The appellants contention was that conversion of polyvinyl alcohol into solution did not amount to manufacture and they rely inter alia, upon the Government of India's letter No. 93/1/78-Ex. 3, dated 13-11-1979 addressed to Indian Chemical Auxiliaries Manufacturers Association, Bombay and the point No. 4 of the Minutes of the Regional Advisory Committee meeting of Bombay-I Collectorate held on 16-7-1986. 11. It was also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 18. Learned Counsel stated in reply that the amendment has been introduced only subsequently with effect from 1-3-1988 and is prospective in character. Hence, the fact that no chemical change is involved is required to be taken into account with reference to the law as it stood during the relevant period. 19. In support of his contention, he would like to rely on the following case law : (a) 1996 (64) ECR 531 (b) 1996 (67) E.L.T. 132 (Tribunal) = 1996 (14) RLT 297 (c) 1996 (82) E.L.T. 86 (d) AIR 1980 SC 251 (e) AIR 1957 SC 657 20. We have considered the above submissions. We observe that there is a lot of force in the arguments of the learned Counsel inasmuch as merely conversion of polyvin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the amendment in a fiscal statute could be considered as coming into operation only prospectively and could not be applied retrospectively, which is correct. At the same time, we have to see whether the amendment was only clarificatory in nature as pointed out by the learned SDR. 23. Learned DR has also rightly relied upon the Tribunal's order holding the amendment as only clarificatory in nature. However, with due respects, I am inclined to differ from the above interpretation of this amendment by the earlier Bench inasmuch as in my opinion, it is not clarificatory in nature. A deeming fiction which is introduced for the first time is obviously of such a nature that it could not be considered as clarificatory and has to be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of dissolving the polyvinyl alcohol powder into water. 24. In view of the above position, it is not necessary to refer to the other case law cited by both the sides and the impugned order is required to be set aside and the appeal accepted. 25. However, as the above opinion is different from the one expressed by earlier Benches of the Tribunal, the matter is required to be referred to a Larger Bench to resolve the difference of opinion. 26. The matter is, therefore, submitted to Hon'ble President to refer to such a Bench to consider the following point : 1. Whether amendment to Chapter Note 6 with effect from 1-3-1988 was only clarificatory in nature or it was prospective (and not retrospective) in applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal was required to be considered in the light of observations and findings of the Vice President and referred to a Larger Bench or the appeal was required to be rejected and there was no need to refer the matter to a Larger Bench." Sd/- Sd/- (Jyoti Balasundaram) (S.K. Bhatnagar) Member (J) Vice President Dated : 22-10-1997 Dated : 29-10-1997 27. [Order per : S.L. Peeran, Member (J), agreeing with Vice President]. - I have heard Shri R. Sudhinder, the learned Advocate for the assessee. None appeared for the Revenue despite Court Master informing the concerned DR. Hence, the matter after hearing was reserved for orders. 28. It was submitted that Note 6 of the Chapter 39 does not have retrospective effect but only h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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