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TMI Blog1997 (7) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 15A at the material time stood as under : ARTIFICIAL OR SYNTHETIC RESINS AND MATERIALS; AND OTHER MATERIALS AND SPECIFIED BELOW - PLASTIC ARTICLES (1) Condensation, Polycondensation and polyaddition products, whether or not modified or polymerised, and whether or not linear (for example, pheno-plasts, amino-plasts, alkyds, polyallyl esters and other unsaturated polyesters, silicones); polymerisation and co-polymerisation products (for example, polyethylene, polytetrahaloethylenes, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloro-acetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, coumaroneindene resins); regenerated cellulose; cellulose nitrate, cellulose acetate and other cellulose esters, cellulose ethers and other chemical derivatives of cellulose, plasticised or not (for example, collodions, celluloid); vulcanised fibre, hardened proteins (for example, hardened casein and hardened gelatin); natural resins modified by fusion (run gums); artificial resins obtained by esterification of natural resins or of resinic acids (ester g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious items which have to be taxed under Item 15A have been enumerated and other cellulose esters, cellulose ethers and other chemical derivatives of cellulose plasticised or not (for example, collodions, celluloid) have been specifically included. 5. The appellant-company filed a classification list on 18-6-1982. Their product Sodium Carboxymethyl Cellulose was described as Carboxymethyl Cellulose and classified under Tariff Item 68. The classification list was approved provisionally and the assessments were made provisionally under Rule 9B of the Central Excise Rules from 1-3-1982. A sample of the product was tested by the Departmental Chemical Examiner, who reported the result as follows : The sample is in the form of a pale brown powder. It is a sodium salt of carboxymethyl cellulose ....... a cellulose ether. 6. RCPL were not satisfied with the test report. They requested for re-test of the sample by the Chief Chemist, CRCL, New Delhi. The duplicate sample lying with RCPL was sent for re-test by the Chief Chemist with their concurrence. The Chief Chemist reported the test result as follows : Sample is in the form of a pale brown powder. It is composed of sodiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether. It also appears that the age of sample is no criterion, which effects the composition of the product and is not relevant. 9. In their reply dated 9-9-1986 to the show cause notice, RCPL challenged the show cause notice stating that it could not be issued without first deciding the issue regarding drawal of fresh sample and sending it to Chief Chemist. They also contended that the earlier test reports of Chemical Examiner and Chief Chemist were not correct, and that CMC was not ether and not classifiable under Tariff Item 15A(1). During the personal hearing before the Assistant Collector on 11-9-1986, their counsel renewed the request for test of a fresh sample by Chief Chemist and requested for facility of cross-examination of Chemical Examiner and Chief Chemist on the next date of hearing. Assistant Collector passed his order-in-original dated 14-10-1986 classifying CMC under Tariff Item 15A(1) and directing RCPL to pay differential duty from 28-2-1982 to 27-2-1986 without giving further hearing. In the said order-in-original the Assistant Collector recorded the following reasons for not drawing a fresh sample for re-test by the Chief Chemist : The sample of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not correct. The company also raised the issue that the test results given by the Chief Chemist, CRCL, Delhi is not acceptable to them on the ground that the sample is old. The company did not show any evidence on record of otherwise that the composition of sample gets affected due to age. Hence this plea of the company cannot be accepted. 10. The appellant-company preferred an appeal against the order of the Assistant Collector. The Collector of Central Excise (Appeals), Madras upheld the order of the Assistant Collector and held that the tests have been made repeatedly by proper authority under Rule 56 of Central Excise Rules. The Assistant Collector was right in not relying upon the other test results produced by the appellant-company. 11. On further appeal, the Tribunal upheld the order passed by the Assistant Collector. 12. These orders are now under challenge before this Court. We were referred to a number of test reports obtained by the appellant from various persons and on the basis of these opinion, the reports of the Departmental Chemical Examiner and also the Chief Chemist were assailed. We are of the view that the Assistant Collector cannot be said to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regenerated cellulose, cellulose nitrate, cellulose accetate and ethers and other chemicals derivatives of cellulose, plasticide or not (for example, Collodions, Celluloid) . Regenerated cellulose, cellulose nitrate, cellulose accetate and ether as well as other chemicals which were derivatives of cellulose have to be understood in the technical sense of the terms. Moreover, it has not been shown that there is a special meaning given to the product of the appellant in the market. 16. In the case of Dunlop India Ltd. v. Union of India and Others - 1983 (13) E.L.T. 1566 (S.C.) = (1976) 2 SCC 241, it was laid down that in interpreting words in a taxing statute, meaning must be given as people in trade and commerce, conversant with the subject, generally treat and understand them. It was further observed that technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, the Court should find no difficulty for statutory classification under a particular entry. In that case, it was pointed out that scope of an entry was a matter essentially for determination by the Department. But when e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 28-2-1964 under the heading Plastics, All Sorts . The Court held that `plastics was a commercial term and was known in the trade and was used in the trade. The Court should not go into the technical analysis of composition and character of a product to decide the nature of the product in preference to the sense in which the market understood it. The Court should go by the trade parlance. The Court pointed out that the conclusion drawn by the Court was also supported by the technical literature and dictionaries which were cited before the Court. 20. The case before us, is not a case where a commonly understood commercial article like `Plastics is sought to be given a special meaning by reference to its chemical composition. Cellulose Ether has been made specifically taxable under Entry 15A(1). The product manufactured by the appellant is Sodium Carboxymethlyl Cellulose which has been tested and found to be Cellulose Ether. The question is whether this product will come under Entry 15A(1). It is not the case of the appellant that this product is known in the market by some other name and that name is to be found in some other entry. The Tribunal was right in holding that SCM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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