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TMI Blog2005 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ic polymers, namely, Synocure 867S, Synocure 823S, Synocure 862X and Synocure 868. The appellants had filed three classification lists bearing No. 1/90-91, dated 3-4-1990, 4/90-91, dated 10-4-1990 and 6/90-91, dated 5-6-1990 respectively classifying the aforesaid products as acrylic polymers in primary form under Chapter sub-heading 3906.90 of the first schedule to the Central Excise Tariff Act, 1985 claiming concessional rate of duty @ 40% ad valorem in terms of Sr. No. 42 of the schedule to the Notification No. 53/88, dated 1-3-1988. The appellants, vide their letter dated 11-10-1990, addressed to the Assistant Collector submitted that there was a clerical error in filing the aforesaid classification lists and the correct rate of duty should have been @ 20% ad valorem in terms of Sr. No. 9 of the schedule to the Notification No. 53/88, dated 1-3-1988. The appellants also filed a revised classification list No. 9/90-91 dated 17-10-1990 in respect of the above products. In the revised classification list Sr. No. 9 to the Notification 53/88, dated 1-3-1988 was claimed contending that the products are emulsions. 3.The revised classification list filed by the appellants on 17-10-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Technology, Bombay and the Department of Chemical Technology, University of Bombay. The Collector had behind the back of the appellant forwarded these opinions to the Deputy Chief Chemist of the Central Excise Collectorate for his opinion and also requested certain tests to be carried out on the samples of the appellant's products, reports of which were required to be submitted to the Collector. In pursuance of this request, the Deputy Chief Chemist carried out certain tests on the appellant's products and forwarded his report to the Collector under his letter dated 13-3-1992 and also submitted his opinion on the technical opinions produced by the appellant. According to learned Senior Counsel, the appellant was kept in the dark of the test results of the products and also of the opinion of the Deputy Chief Chemist on the technical aspect, right through the proceedings before the Collector. It was only when the matter came up before the Tribunal in appeal, the Tribunal suo motu directed the Department to produce the test reports of the appellant's products in its order dated 8-2-1999. Thereafter, the Department filed copies of its reports, inspection of which was given to the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been referred to in the show cause notice as the show cause notice has been issued earlier on 3-1-1992 while the request by the Collector to the Deputy Chief Chemist was made later as borne out by letter dated 20-7-1992 of the Collector; (e) That the principles of natural justice require a complete disclosure of all evidence on record to the assessee and the impugned order is clearly in breach of the principles of natural justice and has denied the appellant their right to a fair hearing; (f) Once an adjudicating authority refers certain evidence produced by the assessee for the technical opinion of the Deputy Chief Chemist of the Department, he is bound by the principles of natural justice to furnish the Deputy Chief Chemist's report to the assessee. The assessee would then have an opportunity to rebut the Department's evidence; (g) The proceedings before the Collector are quasi judicial in nature. A complete disclosure of all material before the Collector has to be made to the assessee who is entitled to notice of the same and no evidence can be sought to be collected behind the back of a party as the same results in a denial of a fair he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Tribunal to the extent it dismisses the appellant's appeal. 9.Mr. R. Venkataramani, learned Senior Counsel for the sole respondent in reply to the arguments advanced by learned Senior Counsel for the appellant submitted that the order passed by the Tribunal dismissing the appeal filed by the appellant herein is in order and is unassailable and that it is legally permissible for the adjudicating authorities to make such enquiries as are necessary for adjudicating the case and thus it cannot be alleged the Collector had forwarded the opinion to the Deputy Chemist behind the back of the appellant's. He reiterated the other contentions raised before the lower authorities. 10.In the above background of facts, the issue in the present matter is whether the appellant's products fall under Sl. No. 9 or Sl. No 42 of Exemption Notification No. 53/88, dated 1-3-1988. The said entries are as follows : Serial No. 9 3905.10 or 3905.90 or 3906.90 Homopolymer and copolymer resin emulsions based on acrylic and/or vinyl monomers 20% ad valorem Serial No. 42 39.01 to 39.15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st were not relied upon by the Department. The findings were absolutely independent of the test report. Therefore, it is futile to contend that there is breach of Rule 56. In our view, there is no breach of the said rule due to non-reliance by the Departments by the test report and, therefore, the application of the above rule would be there only in case of reliance on the test report by the Department. It is also pointed out that, in any case, through out the proceedings of the case, the appellants have failed to submit any cogent evidence or arguments against the opinion of the Deputy Chief Chemist. The Tribunal has clearly clarified this point in its judgment. We, therefore, hold that the impugned order is not in violation of the principles of natural justice as alleged by the appellant. 13.It is also denied by the respondent that the opinion was not considered by the Tribunal which is clear from their statements relied by the Tribunal. On the other hand, the evidence relied upon by the adjudicating authority is based on the commercial parlance as the product is understood by the appellant's own technical experts from its production, planning and purchase departments and also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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