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TMI Blog2022 (9) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. The impugned order is not sustainable - the appeal is allowed. - CUSTOMS Appeal No. 224 of 2012-DB - A/11133/2022 - Dated:- 13-9-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Manish Jain, Advocate for the Appellant Shri R P Parekh, Superintendent (AR) for the Respondent ORDER In this case, the case of the department is that the HDPE compounded with 2% carbon black is not eligible for exemption under Serial No. 477 of Notification No. 21/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 one hand, they relied upon the test certificate of the supplier to hold that addition of carbon black results in chemical modification, ignoring the specific statement of the supplier that there is no chemical modification. Having relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efully considered the submissions and perused the records. The appellants imported Black Compounded High Density Polyethylene and claimed classification under subheading 39012000 at the rate of BCD at 5% in terms of Notification NO. 21/2002-Cus dated 01.3.2002. The department accepted the classification. However, denied the benefit of Notification on the ground that the notification grants 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E 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 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. 7 . We find that the aforesaid decision is squarely applicable to the instant case and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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