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TMI Blog2024 (4) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... plastic material transform into primary form and for such material the appropriate heading is 3901 to 3914. A perusal note would indicate that the terms primary form applies to lumps, powder and granules. The chemical examiners report clearly holds that the goods are single thermoplastic material and are in form of lumps, powder granules etc. The chemical examiner further holds that the goods are in primary form. In these circumstances, the attempts to sustained classification of goods under heading 3915 cannot be upheld. In terms of Notes 6 and 7 and in terms of the chemical examiner report, it is apparent that the goods are not classifiable under heading 3915 being of single thermoplastic material in primary form. If single thermoplastic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance recycled agglomerated plastic declaring classifiable under Chapter sub-heading 39159029 during the year-2007- 2008, 2008-2009, 2009-2010, 2010-2011 and 2011-2012 (up to September-2011) on payment of Central Excise Duty calculated according to provisions prescribed under Notification No. 23/2003-CE dated 01.03.2003. It was noticed that while calculating aggregate duty both these appellant had taken basic Customs Duty at the rate of 5% ad valorem in terms of Notification No.. 21/2002-Cus., dated 01.03.2002 as amended vide Notification No. 11/2006 dated 01.03.2006. According to the said notification, the exemption of duty was available to the product of Chapter Heading 3901 to 3904 (Serial No. 477 to 480 of notification). Revenue was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 19.06.2012 was issued by the revenue. Learned counsel pointed out that earlier during 2007-2008 and 2008-2009, the Central Excise Revenue Audit had identified short payment of Education Cess and SHE Cess on the said goods. The said differential Cess was paid by the appellant. He pointed out that the duty payments of the said transactions were examined by the Central Excise Revenue Audit at the material time well before the issue of show cause notice. Thus revenue was aware of the classification and rate of duty structure adopted by appellants. 2.2 Learned Counsel stated that the process of making agglomerated Plastic out of waste and scrap imported by them involved a processing. He argued that these granules are undisputedly the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the contention of Commissioner (Appeals) is not acceptable for the reason that the Chapter Note-3 applies only to sub category (a to e) prescribed in said Chapter Note-3 to Chapter 39. He argued that the said Chapter Note is not applicable to agglomerated Plastic as it does not fall in any category (a to e) specified in said chapter 3 to chapter 39. He argued that the said chapter in terms of Chapter Note 6 and 7 to Chapter 39, the said goods are classifiable under Chapter Heading 3901 to 3914. 2.5 Further, he pointed out that the argument of revenue that even if the goods are in primary form in terms of Chapter Note 6 to Chapter Note 39 still the goods can be classified in heading 3901 to 3904, only if they are produced by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lene (pigmented) size 2 mm to 15 mm . 4. Learned Counsel pointed out that from the above report , it can be seen that even chemical examiner has stated that the goods are in primary form and composed of single thermoplastic namely polyethylene. 5. Learned AR relies on the impugned order. 6. We have considered the rival submissions. We find that the issue before us is if the product imported by the appellant can be considered goods classifiable as polymers of ethylene in primary form under heading 3901 or the same have to be classified as waste, paring and scrap of plastic falling under heading 39159029. It is noticed that while samples were drawn but the reports obtained from chemical examiner have not been relied in the current proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 7 and in terms of the chemical examiner report, it is apparent that the goods are not classifiable under heading 3915 being of single thermoplastic material in primary form. 7. The revenue in the proceedings has greatly relied on Chapter Note 3 of Chapter 39 which reads as follows: 3. 3901 to 3911 apply only to goods of a kind produced by chemical synthesis, falling in the following categories: (a) Liquid synthetic polyolefins of which less than 60% by volume distils at 300 C, after conversion to 101.3 kPa when a reducedpressure distillation method is used (3901 and 3902); (b) Resins, not highly polymerised, of the coumarone-indene type (3911); (c) Other synthetic polymers with an average of at least 5 monomer units; (d) Silicones (3910 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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