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TMI Blog2002 (2) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... 3915.90 as confirmed by the Commissioner of Customs under the impugned Orders Nos. 12-13/2000, dated 25-4-2000 and 14-15/2000, dated 2-5-2000. 2. Shiri G.L. Rawal, learned Advocate submitted that both the Appellants are traders of acrylic sheets/off cuts of acrylic sheets, off cuts (chips); that they imported acrylic sheets/off cuts and declared classification under Heading 39.06 of C.T.A.; that the Adjudicating Authority has held that the goods on examination were found to be crushed pieces of acrylic sheets/off cuts; the goods had been mis-declared; the impugned goods are in the nature of waste type of material and are classifiable under Heading 39.15. The learned Advocate, further, submitted that the normal practice of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral or documentary." 3. The learned Counsel further submitted that the Adjudicating Authority himself has observed in the impugned order that the impugned goods are of single thermoplastic material, that as per Note 3(C) to Chapter 39 of CTA, Heading Nos. 39.01 to 39.11 apply to synthetic copolymers with an average of at least five monomer units; that Note 7 to Chapter 39 clearly provides that "Heading No. 39.15 does not apply to waste, pairings and scrap of a singe thermoplastic material, transformed into primary forms (Heading Nos. 39.01 to 39.4)", that once the Adjudicating Authority mentions that the impugned goods are of single thermoplastic material, these cannot be classified under Heading 39.15 in view of Note 7; that Note 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has been held by the Tribunal in Collector of Customs v. East West Exporters [1991 (52) E.L.T. 66 (T)] that "Time and again, the Tribunal and Courts have pointed out that the Chemical Examiner has only to give the findings and results on the test carried out by him and not enter into a dialogue or exceed from that limit in expressing his opinion in the form of an order regarding the classification of the product." He further submitted that in respect of Appeal No. C/332/2000-C, there is even no mention in the test report that the impugned goods were not transformed into primary forms; that on a query from the Assistant Commissioner, the Chemical Examiner only opined that physical appearance and form of all samples indicate that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fine imposed by the Adjudicating Authority; that there is no material or evidence to show the margin of profit He relied upon the decision in Pradeep C. Saha v. Additional Collector of Customs [1993 (68) E.L.T. 525 (CAL)], Ashwin Vanaspati Industries (P) Ltd. v. Collector of Customs [1987 (29) E.L.T. 991 (T)]. He also mentioned that as Revenue itself was not clear as to under which heading subject consignment is to be classified, no penalty is imposable; that it was held by the Supreme Court in Akbar Badruddin Jiwani v. Collector Customs [1990 (47) E.L.T. 161 (S.C.)] that the burden lies on the Department to show that the Appellant has acted dishonestly or contumaciously or with deliberate or distinct object of breaching the law before p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not in primary forms, they will remain classifiable under Heading 39.15 only; that Heading 39.20 of CTA is not applicable as the goods in question are neither in the form of plates/sheets/film/foil and strip of plastics; that as such the Appellants had misdeclared the goods. The learned SDR also submitted that the Appellants had not quoted any specific instance of classifying the impugned goods under Heading 39.06 or 39.20 whereas the Commissioner had referred to another Adjudication Order No. 11/Cus/93, dated 24-3-93 in which the product was classified under Heading 39.15 and no appeal was filed in the said matter; that as such there was no established practice of classifying the impugned goods under Heading 39.06 or 39.20; that as li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermoplastic material acrylic Polymer. The disputes revolve around the issue as to whether the goods are transformed into primary forms. The Chemical Examiner has opined that physical appearance and form of the sample indicate that it is not in primary form. No chemical examination of the product seems to have been carried out to ascertain as to whether the goods in question were transformed in primary form or not. The Chemical Examiner in the cross-examination has admitted that the opinion was given just by looking upon the sample and based on HSN. We find force in the submissions of the learned Advocate that an expert has to examine the product and the bald statement is not sufficient to prove the fact (AIR 1959 Allahabad 53, supra). Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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