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TMI Blog2019 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... 2094/2015-DB - M/10001-10003/2019 - Dated:- 2-1-2019 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) And SHRI RAJU, MEMBER (TECHNICAL) For Appellant: Shri T. Chandran Nair (Adv.) For Respondent: Shri S. K. Shukla (AR) ORDER Per: Raju These miscellaneous applications have been filed by M/s Time Technoplast Ltd and M/s TPL Plastech Ltd. M/s TPL Plastech Ltd has filed this stay application whereas M/s Time Technoplast Ltd has filed miscellaneous application as well as stay application. However, Ld. Counsel withdraw the miscellaneous application and the same is dismissed as withdrawn. 2. Ld. Counsel for the appellant argued that in a dispute involving rate of duty on the product imported by them, the case was booked by Commissioner of Customs, Kandla. The imported goods were seized and in the proceeding, the demand of duty was confirmed and the goods which were seized were confiscated and redemption fine was imposed. The goods were earlier cleared to the appellant provisionally on furnishing of bank guarantee. The applicants have filed appeals before the said order before Tribunal and deposited the amount necessary for filing the appeal as prescribed in Section 129 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Standard rate Additional duty rate Condition No. 236 3901 to3915 (except 3903 3908) All goods 7.5% 237 The following polymers of ethylene, namely- (i)Low density polyethylene(LDPE) (ii)Linear Low density polyethylene (LLDPE) (iii)High density polyethylene (HDPE) (iv)Linear Medium density polyethylene (LMDPE) (v)Linear High density polyethylene (LHDPE) 5% The appellant have claimed that the products are High Density Polyethylene. The products were sent to Chemical Examiner who has opined that the products are composed of Polyethylene modified with Hexane. The test report read in the case of Time Technoplast Ltd as follows: The sample is in the form of colourless translucent granules. It is composed of polyethylene modified with hexane, having specific gravity more than 0.94. as per the technical literature available here, the sample under reference is having extra high molecular we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not given to them. On appeal, the CPIO-cum-Deputy Commissioner of Customs vide latter dated 19.112013 decline to disclose the opinion stated under Section 8(1)(h) of the RTI Act, 2005. 3.2 Ld. Counsel argued that the test reports were passed solely on the technical literature and specifications without carrying out chemical analysis of the samples. He argued that the specific gravity confirmed to 0.94, which is the specific gravity of the products declared by them i.e. HDPE. He further argued that samples were found to be as colourless translucent granules which confirmed to the fact that the same is in primary form. He argued that the presence of Hexane confirmed that the materials are manufacture slurry process wherein Hexane is Co-Monomer along with ethylene. He argued that this is a well known process for manufacture of polyethylene materials. 3.3 Ld. Counsel argued that intention of Government is to allow concessional rate of duty to all raw materials. Ld. Counsel argued that the chemical examiner reports dated 20.12.2012 simply adopts the opinion of Superintendent (SIIB) Customs, Kandla wherein he had stated his doubts that the certain importers were importing chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case. The Revenue has not got even the test certificate from the Government laboratory which was essential in this case. Whether the product is a chemically modified HDPE or not and whether it is known as HDPE in the market, has not been considered at all. In the absence of test conducted by the Government controlled laboratory, if the test report of the supplier is relied upon, it has to be fully considered. The Revenue has not applied even the trade parlance test. 9. At this stage, it may be worthwhile to note that in the case of M/s. Plastic Colour Corporation, the assessee was engaged in making shipping compounds by adding 2.5% carbon black HDPE granules. This activity was finally held to be not amounting to manufacture and the matter has reached finality by Hon ble Supreme Court which held it so. 10. In the absence of any support for the conclusion that the product imported by the appellant has been chemically modified or it is not known as HDPE in the market, the benefit of exemption under Sr. No. 477 has to be extended to the appellant. 11. In the result, the appeal is allowed with consequential relief, if any, to the appellant. (b) PSL Limited vs. CC 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est conducted by the Government controlled laboratory, if the test report of the supplier is relied upon, it has to be fully considered. The Revenue has not applied even after the trade parlance test. 9. At this stage, it may be worthwhile to note that in the case of M/s. Plastic Colour Corporation, the assessee was engaged in making shipping compounds by adding 2 5% carbon black HDPE granules. This activity was finally held to be not amounting to manufacture and the matter has reached finding like Hon ble Supreme Court which held it so. We find that the aforesaid decision is squarely applicable to the instant case and the department has not challenged the same. Therefore, it has reached the finality. Further, so far as, contentions of the department on the issue are concerned, it is pertinent to mention here that in the case of Ambica Prasad V. State of U.P. AIR 1980 SC 1762 Krishna Iyer J. has pointed out that- Every new discovery or new argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparking with creative ingenuity and presented with high pressure advocacy cannot persuade us to reopen what was laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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