9911796707
TMI Blog2011 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... was added in the ex-bond bill as per the appellant's understanding that BAM is an adhesive. It was for the Revenue to check whether BAM was covered by the expression adhesive or not and if even after drawing of samples they have allowed the clearances to be effective as an adhesives appellant cannot be held responsible for the same and subsequently, if the Revenue has changed their opinion as regards the adhesive character of BAM, extended period cannot be invoked against them. - 6334-6335 Of 2003, 1757 OF 2004 - - - Dated:- 4-7-2011 - MUKUNDAKAM SHARMA, ANIL R. DAVE, JJ. JUDGMENT Dr. MUKUNDAKAM SHARMA, 1. These appeals are directed against the judgment and order dated 17.02.2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata in appeal Nos. CRV-75 and 74 of 1999, whereby the Tribunal had allowed the appeal of the Respondents and set aside the order passed by the Commissioner of Customs on the ground that the Butyl Acrylate Monomer i.e. the chemical imported by the Respondents can safely be held to be an adhesive and was covered by the advance licences produces by the Respondents. 2. As per the facts on record t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how cause notice proposing confirmation of demand of duty, as also confiscation of the imported product and imposition of personal penalties upon the various persons. 7. During the adjudication proceedings the Respondents took a specific stand that the BAM in question is a liquid which becomes adhesive on polymerisation upon coming into contact with light and heat. It was argued on behalf of the Respondents that to prevent spontaneous polymerisation BAM is normally stabilised by some inhibitor and that since BAM polymerises readily without much requirement of processing and as after polymerisation the same shows adhesive properties it should be treated as adhesive only. They also placed reliance on the manufacturer's printed literature and contended that it is clear that BAM is used as an adhesive. The Respondents clarified that BAM does not possess any adhesive properties in the Monomer form, but the same is an adhesive in the polymer form, which process is undertaken naturally when the Monomer form comes in contact with heat and light. The Respondents pleaded that it is not feasible and practicable to import the item in polymer form as after polymerisation, the product immedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods on the basis of the advanced licences which allowed adhesive to be cleared duty free. It was pointed out that the Revenue also drew samples before clearance of the goods and it is only thereafter that the clearances were permitted by them. The Tribunal by its order dated 17.02.2003 allowed the appeals of the Respondents stating that BAM can be rightly classified as an adhesive and therefore, the Respondents had rightfully claimed the clearance of goods on the basis of advanced licences. Hence, the present Special Leave Petitions have been preferred by the Appellant. 11. The learned counsel appearing for the Appellant submitted before us that the Tribunal made a fundamental error in ignoring the fact that the BAM was required to undergo a further industrial process to become an adhesive, and thus the imported item under no circumstances could be classified as an adhesive. The contention is that the imported chemical is a Monomer organic chemical, which is one of the raw materials used in the manufacture of adhesives, the opinion which has been substantiated by various experts from the field of Industry. The appellant has alleged that the imported material i.e. BAM (inhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f allowing the duty free clearances against advance license issued under the DEEC scheme. Goods in packed condition are of no use. It can only be used when it is opened and put to use. We are, therefore, to consider as to whether for all practical purposes BAM is an adhesive. It is admitted in the Show Cause that end-use of BAM is adhesive in leather industry. However, a distinction is sought to be made in the present case that until monomer becomes polymer, it is not adhesive. It is alleged that in Monomer form, BAM is not adhesive. By putting such an interpretation, an attempt has been made by the appellant to divest BAM from the coverage of adhesive. The issue is whether the requirement of opening the container, allowing BAM to contact with air, light and heat and even putting a catalyst could detract from its being an adhesive. 15.Admittedly, the expression "adhesive" is not defined in the Act. It is now well settled that the words and expressions, unless defined in the statute have to be construed in the sense in which persons dealing with them understand i.e. as per trade and understanding and usage. 16. The word "adhesive" was mentioned in the ex-Bond B/E inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and feasible to import the product in its polymerised form and the same is always stored in its Monomer form. In fact inhibitors are added to avoid self-polymerisation of the product during storage. It is the case of both the sides that the Monomer form becomes polymer form of the chemical suited to be used as adhesives, when it comes in contact with nature. It is only that in some cases where bulk polymerisation is required, extra heat i.e. more than the heat provided by the nature is required to increase the process of polymerisation, as has been opined in the opinions of experts brought on record by the Revenue. As such the Tribunal was of the view that the Butyl Acrylate Monomer, which undergoes self-polymerisation on coming in contact with the atmosphere, can be safely held to be an adhesive and covered by the various advance licences in question. 19.It is also noted that in the technical literature given by the manufacturer, use of the product has been shown as adhesives. Even though the Revenue has disputed that the said literature produced by the Respondents is not correct and is manipulated inasmuch as the same is different than the manufacturer of identical product i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binder in 'Leather Industry' as per this authoritative Encyclopedia on Technology, should be denied the benefit of considering the same as adhesives. 22. The appellant has placed reliance on the judgment passed by the CEGAT, Mumbai in the matter of Pioneer Embroideries Ltd v. commissioner of Customs, Mumbai 2004 (178) E.L.T 933 (tri.). We have gone through the said judgment, however, the same is not applicable to the present case both on facts and law. 23.When it is found that the licences produced entitle the Respondent to clear the ex-bond goods free of duty, there are no reasons for them to have mis-declared the values since the goods are duty free. There appears no incentive to do so. There is no allegation that the licences produced will not cover the quantity of values, even after the alleged loading of values as declared. Therefore, this court upholds the decision of the Tribunal. 24.It is also observed that the demand is hit by the bar of limitation inasmuch as the appellant had cleared the goods in question after declaring the same in the bills of entries and giving correct classification of the same. Availing of benefit of a notification, which the Revenue sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
