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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 ..... 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 129E of the Customs Act, 1962. Earlier M/s TPL Plastech Ltd had filed miscellaneous application seeking to prevent the Customs authorities from en-cashing the bank guarantee given while getting release of the said goods, which were later confiscated and on which redemption fine was imposed. In those proceedings, vide order no. M/10845/2018 dated 31.07.2018 Tribunal refused to interfere holding that the deposits under Section 129E does not automatically grant any stay against recovery of other dues. It is up to Revenue to restrain itself or go ahead with the recovery proceedings. The Tribunal however, in the said order held that Tribunal has power to stay the recovery. In the light of above order dated 31.07.2018, these stay applications have been filed by the applicant. 3. In the said application, it has been argued that the appellant have strong prima facie case and, therefore, the proceedings for encashment of bank guarantee should be stayed. The facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 weight with bimodal distribution of molecular Remnant sample may be collected within 15 days." The matter was contested by the importers and, therefore, sample sent to CRCL, New Delhi for re-testing and the Director of CRCL vide latter dated 22.08.2013 gave the following report: "Each of six samples is in the form of translucent Granules, Each sample is organic in nature, answering test for presence of polyethylene and hexane, IR spectrum of each sample also conforms the presence of polyethylene and Hexene. Values of following physic chemical parameters, i.e. Density, Melting point, Hexene extractability and Xylene solubility are as below: Chemical tests, IR Spectrum and values of Density and Melting Point indicate that each sample r/r is a Copolymer of Ethylene and Hexene. Further values of n-Hexene extractable fraction at 50◦C and Xylene soluble fraction at 25◦C confirms that each of the six sample u/r meeting the specification criteria of FDA Regulation 21 CFT 177.1520 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and technical specification sheet submitted with your letter. It was observed and construed from the technical parameters mentioned in the technical data sheet that the subject goods. i.e. HDPE Marlex HXM TR-571 IS A COPOLYMER OF POLYETHYLENE WITH Hexane. It is other than Homopolymer of Polyethylene, i.e. HDPE, LDPE LLDPE, LMDPE, LHDPE, etc." 4. Ld. DR argued that the appellant have already consumed the material released to them and therefore, the Revenue is within its right to encash the bank guarantee. 5. We have gone through rival submissions. We find that the issue regarding the said Notification 21/2002-Cus and eligibility of compounded HDPE has been considered by Tribunal in the following cases. (a) Ratnamani Metal & Tubes Limited vs. CC, Kandla - 2013 (291) ELT 369 (Tri. Ahmd.) "8. After hearing both the parties in great details, we find that the ld. Commissioner has taken a view that adding a carbon black results in chemically modifying the HDPE. It is not the case of the appellant that addition of carbon black does not result in any chemical modification. The carbon black is added for the purpose of colour and strength. The appellant also submits that only chemicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants exemption to HDPE whereas the goods are Black Compounded High Density Polyethylene. Undisputedly, the goods imported contained 2.5% carbon black. The impugned goods are in the form of granules is also not disputed. It is a settled principle of law that Customs Tariff is based on HSN and in case of doubt HSN is a safeguide for ascertaining the meaning of any expression used in the Act. We find that the co-ordinate Bench of this Tribunal in the case of Ratnamani Metal and Tubes Ltd. supra held as under: "8. After hearing both the parties in great details, we find that the Id. commissioner has taken a view that adding a carbon black results in chemically modifying the HDPE. It is not the case of the appellant that addition of carbon black does not result in any chemical modification. The carbon black is added for the purpose of colour and strength. The appellant also submits that only chemically modified polymers are different and otherwise, they are to be treated as HDPE. Further, they also submitted that the test certificate given by the supplier clearly indicate that the goods are not chemically modified HDPE. In our opinion, the lower authorities have not been fair. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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