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TMI Blog2001 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... inted on it. The appellant makes the colouring matter used for this purpose in its factory. In the two orders impugned in these appeals, the Commissioner, adjudicating on a notice demanding duty on the ground that the appellant, has confirmed the demand for duty and imposed penalty. 2. The contention of the appellant was, and continues to remain, that what it manufactured was colouring matter which was not paint as commercially understood, and hence classifiable under Heading 30 of the Tariff. The counsel for the appellant submits that the colouring matter manufactured by it consisted of pigment mixed with resin and thinner. This mixture was not technically or commercially paint. It does not contain dispersing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific enough. Nowhere is it laid down that paint must necessarily contain the additives that of the kind that is upon refers to. It is perfectly possible for a colouring mixture to be paid and so classified, if the conditions of its use did not warrant presence of the additives. Even inferior quality of paint or sub-standard paint will still be classifiable as paint. He relies upon the judgment of the Supreme Court in Andhra Pradesh State Electricity Board v. CCE, Hyderabad, 1994 (70) E.L.T. 3 to support his contention that marketability is a question of fact is to be determined in each case. It is enough for the department to show that a commodity which is capable of being marketed and need not be shown that they are in fact so markete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right. Both sides relied upon the judgment of the Supreme Court in K.L. Tripathi v. State Bank of India - AIR 1984 SC 257. The Supreme Court has in the judgment emphasises that "the concept of fair play in action must depend upon the particular lis, if there be any, between the parties....." "When on the question of facts there was no dispute, no real prejudice has been caused to the party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at therein. This is more so, when the party against whom an order has been passed does not dispute the facts and does not desire to test the veracity of the version or the credibility of the statement." 7. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to paint. It also indicates that different additives fulfil different functions, as it would be evident from the extracts that we have quoted. These books, however, deal with manufacture of paints and its technology. They do not, address the question as to whether a substance can be a paint in the absence of some or all of these additives. To rephrase the question, they do not say which, if any of the additives is an essential ingredient of paint. The appellant has also relied upon an opinion of Dr. Shenoy of the University Department of Chemical Technology, Mumbai. He had said that the product manufactured by the appellant was, in the absence of wetting or dispersing agent, not paint. 8. However, the Commissioner has not approached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant had cited the report dated 16-10-1997 of the Department of Chemical Technology that a sample of the product became hard after four or five days, indicating its shelf life to this period. The counsel for the appellant however points out that the report indicates that the sample was received sealed in a plastic tin with the stamp of the Central Excise authorities dated 30-9-1997 and suggest that this shows that four or five days referred to in the report would commence from the date on which the tin was opened and the sample taken out for being tested. The shelf life is thus much logger than 4 or 5 days. In the absence of precise detail, we are unable to comment on the correctness of this claim. However, it does show that the shelf life o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period contained in the proviso under Section 11A (1) of the Act. We have heard the arguments on this aspect. However, we prefer not to deal with this question now. Determination on the merits of the issue is inevitable for the disposal of this appeal, since the other notices did not invoke the extended period. We are of the view that in order to better appreciate the arguments regarding the limitation in their correct perspective, a decision on the merits is relevant. We therefore propose to remand the matter for determining in accordance with law, and keeping mind our directions the question as to whether the product is paint as technically and commercially understood. In the event that the Commissioner finds that the product is not so a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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