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TMI Blog2003 (4) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... llants manufacture plastic crayon falling under sub-heading 9609.00 which is chargeable to nil rate of duty, in the manufacture of which an in process product known as crayplas shapeless plastic crayon (impugned good) comes into being. According to him, the impugned goods is the mixture of various raw-materials in shapeless and solid form, which only needs to be molded into plastic crayon. The appellants had filed a classification list No. 6/1994-95 on 4-4-1994 in respect of the impugned good claiming classification under sub-heading No. 9609.00 as an in-process material on 31-3-1995. A show cause notice was issued to the appellants suggesting classification of the impugned goods under sub-heading 3202.19 and demanding duty for the period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned goods to be classifiable under sub-heading 9609.00. However, the said order-in-original was reviewed by the Commissioner, Mumbai-III which resulted in a departmental appeal to the Commissioner (Appeals) and the same has been decided by him under the impugned order-in-appeal dated 6-2-2002 confirming the demand for Rs. 6,38,382/- and imposing a penalty of Rs. 60,000/-. 3. Shri M.H. Patil, learned advocate challenges the impugned order-in-appeal on the following grounds :- (1) The impugned goods are nothing but unfinished plastic crayon and therefore, the same are classifiable under sub-heading No.9609.00 as crayon in view of the General Interpretative Rule (GIR) 2(a). (2) The grounds raised in Revenue s appeal were not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Luxor Pen Company v. Collector of Customs, Calcutta - 1994 (70) E.L.T. 294 (Tri.) will not apply as the said decision has not considered the possibility of classification under Chapter 96 as it is well settled that precedent is not binding if the same has not considered all arguments. He also refers to the Explanatory Note to HSN under Chapter 96 and Chapter 32 to say that Chapter 96 covers carving and moulding materials and therefore, the impugned goods would fall under Chapter 96 whereas since the same are not coloring matter, the same would not fall under Chapter 32. Finally, he states that if the impugned goods are charged to duty the Government s intention to exempt crayon from duty would be defeated by charging duty at an ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tata Iron Steel Co. Ltd. v. C.C.E. -1995 (75) E.L.T. 3 (S.C.) (17) Collector of Customs, Cochin v. State of Kerala - 1993 (66) E.L.T. 351 (Ker.) (18) Satellite Engineering Ltd. v. Asstt. C.C.E. - 1992 (58) E.L.T. 503 (Guj.) 5. Shri S.S. Bhagat, learned S.D.R. appearing for the Revenue states that the appellants have mis-declared the impugned goods as shapeless crayons whereas the same are nothing but plastic crayon compound and are covered under Chapter 32 in view of being a preparation. He relies on the Apex Court decision in the case of Atul Glass Industries Ltd. and Others v. Collector of Central Excise and Others - 1986 (25) E.L.T. 473 (S.C.) to the effect that how a product is identified by a class or section of people ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter bound together with other binding matter, inorganic fillers and additives. It is not possible to give %age of each ingredient used in the product. It has the same composition as that of finished product crayon (article) which are known to find use writing or drawing. Finished crayplas plastic crayon is manufactured article in the form of sticks of different colours pointed and kept in small containers. This is also composed of waxy, fatty and organic colouring matter bound together with other binding matter, inorganic fillers and additives. It is not possible to give %age of each ingredient used in the product. It has the composition of crayon and is appropriately covered under Chapter sub-heading 9609.00 of Central Excise Tariff Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned goods are more akin to crayons under sub-heading 9609.00 than to pigments and preparations based thereon falling under sub-heading 3204.19. The rule of interpretation [GIR 3(c)] also allows classification under a heading lower in the numerical order where a product merits equal classification under more than one heading. Though in our view there is no need to take recourse to this rule in the instant case, we do observe that under these various rules of interpretation, the preference clearly lies in classification of the impugned goods under sub-heading 9609.00 as was originally determined by the Deputy Commissioner. We also note that such classification does not militate against the Government s clear intention to exempt crayons in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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