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TMI Blog2017 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... established that paper is quoted with certain resols which have the essential characteristics of meriting classification under chapter 39 and which according to Note-01 of chapter 39 are to be called plastics. The clarification dated 1.6.2012 given by the Ministry of Chemicals and Fertilizers has persuasive value. The impugned goods are outside the purview of the Chapter 39 - appeal allowed - decided in favor of appellant. - Appeal No. E/52016/2014 - Final Order No. 62026/2017 - Dated:- 24-7-2017 - Mr. Ashok Jindal, Member ( Judicial ) And Mr. Devender Singh, Member ( Technical ) For the Appellant : B. L. Narsimhan, Advocates For the Respondent : Shri Vijay Gupta, AR ORDER Per : Devender Singh The brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r chemicals for use as adhesive in the manufacture of laminates. He referred to the exclusion note contained in HSN Explanatory Notes in Chapter 39, which clearly excludes from Chapter 39 such preparation specifically formulated for use as adhesives and contended that once a preparation is for use as adhesives, the same will get classified under heading 3506 and not under Chapter 39. He also argued that cross examination of Dr.Nath, Joint Director of IPIRTI whose test reports have been relied upon in the show cause notice and of another chemical examiner Shri Purushotam Kumar Sharma has brought out that these preparations are capable of being used/usually used as adhesives and glues in the laminates industry. He pointed out that several dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In addition, statement of Vice President of the appellant Sh.G.k.Ganguly was recorded. The same investigation formed the basis of show cause notice in the case of Shirdi Industries vs. CCE, Meerut-II (supra) in which similar issue was considered and decided by this Tribunal and it was held as follows: 10. Having considered the rival contentions and on perusal of the records, we find that the impugned order is vitiated on the issue of marketability. The learned Commissioner has relied on unsubstantiated Data from the website, which is also vague in its nature. There is no evidence brought on record that the products and the Companies/Manufacturers listed by the learned Commissioner for reliance in the impugned order, are same or simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acteristics of meriting classification under Chapter 39 and which according to Note 01 of Chapter 39 are to be called plastics. We find that learned Commissioner erred in relying on the said ruling in absence of comparison of chemical composition. We further find that the learned Commissioner have erred in ignoring the clarification given by the Government of India in OM No. 56016/41/2012/PC-II dated 1st June 2012, issued by the Ministry of Chemicals and Fertilizers as noticed hereinabove. We further observe that the said clarificatory circular is binding on the officers of the Government, including the respondent Commissioner. We further find that admittedly wax is used by the appellant in manufacturing of glue, which is clear from the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the process undertaken by such manufacturers have not been examined and therefore the correctness of comparison cannot be upheld. Accordingly, we find that the impugned order is bad and fit to be set aside . 6. The facts and the issue in question being simillar in the two cases, the above judgment is directly applicable to the facts of the present case. We also note the clarification dated 1.6.2012 given by the Ministry of Chemicals and Fertilizers has persuasive value. 7. By following the above judgement of the coordinate bench, we hold that the impugned goods are outside the purview of the Chapter 39. In view of our decision on merits, we leave the question of limitation open. 8. In the result, the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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