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TMI Blog1998 (8) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of the manufacture of ethambutol hydrochloride, an intermediate product known as D-2 Aminobutanol Hemitartrate is formed. It was also revealed that prior to the formation of D-2 Aminobutunol, the product D-2 aminobutanol hemitartrate comes into existence. It was noticed by the Central Excise officers that D-2 aminobutunol hemitartrate is a well defined single organic chemical compound. During the course of enquiry, the officers obtained the manufacturing process from the respondents which is described as under : "Dl.2 minobutunol is taken into SS Reactor and a solvent is added. The mixture is stirred and then it is resolved by addition of Tartaric Acid. The resulting salt of D-2 aminobutanol Tartrate is then taken into a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise and Customs, Baroda vide his DO No. ROL/Tech/87-88/T.O. 11, dated 3-6-1987 has opined that the product D-2 Aminobutanol Hemitartrate in the case of M/s. Thermis Chemicals Ltd., Vapi as under : "D-2 Aminobutanol Hemitartrate can be considered as a well defined single organic compound." In view of aforesaid report, the product D-2 Aminobutanol Hemitartrate is a single organic compound falling under Chapter 29. Therefore, the same would be chargeable to duty at the appropriate rate. (b) The manufacturing process of D-2 Aminobutanol Hemitartrate and D-2 Aminobutanol Tartrate is the same, i.e. if the raw material DL-2 aminobutanol is reacted with tartirc acid in the presence of Methanol as a solvent, an intermediate product D-2 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to levy excise duty is stable at normal temperature and pressure and it does not undergo any abrupt chemical change and has definite shelf life under normal conditions of temperature and pressure. Learned SDR has, therefore, submitted that the lower authority's finding to the effect that the product is unstable and therefore, not marketable and consequently it is not excisable is not correct in law and on facts. He, therefore, prays for setting aside the impugned order. 4. Learned Advocate, Shri A.C. Jain for the respondents submits that the Chief Chemist's opinion has been taken subsequent to the passing of the impugned order by the Collector. In terms of the plain reading of provisions of Section 35E, submits learned Advocate, CBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced on both sides. In the first instance we are inclined to agree with the submissions of the learned Advocate for the respondents that the Board in exercise of its power under Section 35E could only examine the legal propriety or correctness of the adjudication order only on the basis of the records of the adjudication proceedings before the adjudication officer. The Board cannot take into account any additional material which was not a part of the record of the proceedings. Therefore, reliance placed in the first instance by the Board on Chief Chemist's opinion is not correct in law and it has, therefore, to be kept aside. 5.1. If we keep the Chief Chemist's opinion aside the remaining 3 grounds mentioned in the CBE & C's order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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