Customs, Excise and Gold Tribunal - Delhi
Gulshan Sugar And Chemicals Works vs Collector Of Central Excise on 10 December, 1998
Equivalent citations: 1999(63)ECC472
ORDER Jyoti Balasundaram, Member (J)
1. The correct classification of Precipitated Calcium Carbonate (coated and uncoated) produced by the appellants is the issue to be decided in this case--the appellants seek classification under sub-heading 2505.90 with benefit of nil rate of duty under Notification No. 4/94-CE dated 1.3.94 while the Revenue has classified uncoated variety under sub-heading 2836.90 and coated variety under sub-heading 3823.00 of the Schedule to the Central Excise Tariff Act. 1985. The relevant classification lists are SI. No. 22 and 23/CL/IM/93-94 effective from 1st March. 1994.
2. We have heard Shri V. Sridharan learned Counsel for the appellants and Shri J.M. Sharma. learned DR, The appellants are manufacturers of different grades of coated and uncoated Precipitated Calcium Carbonate which are sold by them to various manufacturers of tooth-paste, tooth-powder, cosmetics etc. The process adopted by the appellants is as under:
The basic raw material is limestone which is produced from quarries. First limestone is washed with water to remove surface dust and other siliceous matter. It is then subjected to crushing and screening to remove fine particles of dust and mud. The washed and crushed lime stone is fed into kilns where it is burnt at 1400oC for transformation into quick lime (Calcium Oxide). This quick lime is reacted with tubewell water in the reacting vessel to obtain crushed dioxide slaked, lime. In the next stage, the carbon dioxide which had been driven out during the burning process is passed through Calcium hydroxide to result in precipitated calcium Carbonate (carbonation process). The material which is in a slurry form is centrifuged/filtered and dried in semi or direct heat driers to obtain the finished product in which the particles size is generally 2 to 3 microns. The dried product is packed and stitched in laminated bags.
For obtaining the coated variety, the precipitated Calcium Carbonate is mixed with sodium stearate/stearic acid.
3. At the outset, the appellants contend that the activities undertaken by them do not amount to manufacture as there is no new name, character or use of the product and the entire processes of the operations carried out in their factory premises is to obtain a product of a requisite particle size namely 2 to 3 microns. In other words, he submits that there is no change in the chemical composition between the starting material viz. limestone and the final product viz. Precipitated Calcium Carbonate and ingredients like manganese oxide. silica, iron and other metallic impurities continue to remain in the same proportion in the final product. He cites the decision of the Tribunal in the case of Paramount Sinters wherein the process of agglomeration of ore fines into sinter ores for enlargement of size of ores was held not to amount to manufacture and submits that the Revenue's appeal was dismissed by the Apex Court. However, this Judgment is not applicable in the facts of the present case where the final product is different in name, character and use. The character of the raw material namely mineral substance has changed as the final product is a separate chemically defined compound and the use also is different--it is used by the appellants' purchasers as fillers in cosmetic industry and in the manufacture of rubber and plastic articles and for cosmetic industry, it is necessary that Precipitated Calcium Carbonate is free from abrasive and gritty impurities since only a processed and manufactured item can satisfy the highest specifications for Precipitated Calcium Carbonate (the appellants are selling Precipitated Calcium Carbonate conforming to ISI specifications) Mineral product such as natural limestone or physically processed limestone will not be in a position to meet the requirements of the Cosmetic industry. The test of manufacture is satisfied in the present case while in the case cited by the learned Counsel, the Tribunal has held that no new product emerges from manganese ore fines because the appellants were converting the physical form by a process of agglomeration and sintering of fine particles into useful lumps- Having held that the process of conversion of limestone purchased by the appellants to Precipitated Calcium Carbonate amounts op manufacture. let us now examine the classification thereof.
4. The process of manufacture can be represented by the following Flow Chart:
Calcination
(i) Lime Stone--------------------------------------------------CaO + Co2 (in Kiln) (Quick Lime) Hydration
(ii) CaO + H2O---------------------------------------------------Ca(OH)2 (Quick Lime) (Water) Hydrated/Slaked Lime Carbonation
(iii) Ca(OH) + CO2----------------------------------------------CaCo3 + H2o (Slaked Lime + Carbon dioxide) gas From the above, it appears that the product is manufactured by process of Chemical transformation wherein the mineral limestone, besides being subjected to process of washing and crushing, is also subjected to the process of calcination, hydration and carbonation to obtain Calcium Carbonate confirming to standard specification. The product in dispute is a chemically defined compound. Therefore, the process of manufacture has gone beyond the purview of Note 2 to Chapter 25 and the product is an outcome of various chemical/ physical processes which are not covered by Note 2 to Chapter 25. which sets out that: "Except where their context otherwise requires. heading Nos. 25.01, 25.03 and 25.05 cover only products which have been washed (even with chemical substances, eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted screened, or concentrated by flotation, magnetic separation or otherwise mechanical or physical processes (except crystallisation) but not products that have been roasted. calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading or sub-heading.
The disputed product namely Precipitated Calcium Carbonate is not a mineral product falling for classification under heading 25.05. The lower authorities have noted that the goods under reference are being sold and purchased as chemical Carbonate or Precipitated Calcium Carbonate confirming to ISI specifications according to which certain standards have been prescribed, including standard of fineness, loss in drawing and presence of certain elements and salts. The Precipitated Calcium Carbonate conforming to such specification is used in Cosmetic industry in the manufacture of tooth paste, tooth powder, face powder and talcom powder. For the Cosmetic industry it is necessary that Precipitated Calcium Carbonate is free from abrasive impurities since their presence will cause damage to the skin and to the tooth enamel. Only a synthetically processed items can satisfy the above requirements--a mineral product processed naturally will not be able to fulfill these requirements.
5. Hawley's Condensed Chemical Dictionary, 11th Edition, at page 202 describes two methods of deviation of Calcium Carbonate (i) Mined from natural surface deposits (b) Precipitated (synthetic) by reaction of calcium chloride and sodium carbonate in water solution or by passing carbon dioxide through a suspension of hydrated lime Ca(OH2) in water.
6. The Encyclopedia of Chemical Technology by Kirk Othmer. Third Edition, Volume 4, at page 427, sets out that "Calcium Carbonate CaCO mol wt 100.09, is the major constituent of limestone which is used in the manufacture of quicklime or hydrated lime... Calcium Carbonate occurs naturally in the form of marble, chalk and coral. Powdered Calcium Carbonate is produced by either chemical methods or by the mechanical treatment of the natural materials. The term Precipitated Calcium Carbonate applies to the commercial types of the compound produced chemically in a precipitation process".
From the above extracts, it is clear that Precipitated Calcium Carbonate produced by the appellants herein is not a product which is either occurring in nature or processed by application of physical processes but is produced by a process of chemical transformation resulting in a separate commercially defined compound.
7. The learned Counsel for the appellants refers to note 1(a), (g) and (h) and submits that only certain types of mineral products have been excluded from the purview of Chapter 25 and since Precipitated Calcium Carbonate which according to the appellants, is nothing but precipitated chalk, is not specifically excluded, it will remain under Chapter 25. However, this contention is not correct--Note 1(a) to Chapter 25 excludes Sublimed sulphur, precipitated sulphur, colloidal sulphur, earth colours, containing 70 percent or more by weight of combined iron of Chapter 28. It is clear that Sublimed sulphur or precipitated sulphur which is used 99.0-5% pure is obtained by chemical processing is excluded from Chapter 25 and classified under Chapter 28. Similarly, billiard chalk (1(g)) or Writing or Drawing chalk or Tailor's chalk which has a specific use 1(h) are excluded from Chapter 25 and fall under Chapter 95 (Billiard chalk) or Chapter 96 (Writing or Drawing chalk and Tailor's chalk). The product in dispute is not a mineral substance and therefore, the question of its coverage under Chapter 2 does not arise: moreover, by virtue of Note 2. since the product is calcined, it is excluded from heading 25.05 as held by the Tribunal in the case of Mettur Chemicals and Corporation Ltd. v. Collector of Central Excise, Coimbatore reported in 1995 (56) ECR 761.
8. The case law cited by the learned Counsel viz. the decisions of the Tribunal in the case of Collector of Central Excise, Meerut v. Searsole Chemicals Ltd., and in the case of Collector of Central Excise, Rajkot v. Madhu Chemicals. reported in 1986 (23) ELT 186 is distinguishable. In the first case, the issue before the Tribunal was the eligibility of coated precipitated chalk to the benefit of exemption in terms of Notification No. 23/ 55. The entry annexed to the table read as under: "Minerals: employed either as extenders, suspending agents or fillers or as diluents, namely: Barytes, Bauxite, Bentonite, China Clay, a Celestite, Limestone and Chalk (including Precipitated chalk), Fuller's earth Gypsum, Mica, Silica. Asbestine, Talc and slate".
The Tribunal held in para 13 of its order that for the purpose of the Notification, since chalk includes precipitated chalk, coated precipitated chalk is also covered by expression 'precipitated chalk' because both are recognised in literature as mineral fillers. The Tribunal was not concerned with the issue of classification in the context of the Tariff as it then stood.
9. In the second case, the issue involved was whether precipitated silica is a mineral covered by SI. No. 1 of the table annexed to Notification 23/55 dated 29.4.55. The Tribunal held that the term mineral comprises even mineral synthesized to achieve higher purity than that found in the natural products. (For this purpose, the Tribunal relied upon the definition of minerals occurring in the Glossary of Chemical Terms by Clifford A Harnpah--Gesner G. Hawley). In para 18 of the order, the Tribunal held that SI. No. 1 of the Notification is not restricted to naturally occurring minerals (unlike SI. No. 2 which covers only three specified natural black minerals) and therefore, SI. No. 1 would also cover substances which are recognised in literature as minerals although they may not be in naturally occurring state. It is relevant to note that the issue of classification, of precipitated silica was not material for the purpose of considering the eligibility of that item to the benefit of notification in question. This is brought out from para 25 of the order wherein the Tribunal has held that for the purpose of Notification No. 23/ 55, it is not necessary that the substance should be classified under TI 14 of CET because the Notification does not refer to the tariff item under which the substance should fall, in order to become eligible for exemption and what is necessary is that the substance should be known to be employed either as extenders, suspending agents or fillers or as diluents. The Tribunals has held that since precipitated silica (synthesized silica) was used as filler and extender as seen from technical literature, it was covered by SI. No. 1 of the table annexed to the Notification 23/55. In the present appeal, however, the issue revolves around the classification of the product.
10. The learned Counsel also relies upon Chapter on Reinforced Plastics and Composites, in the Modern Plastics Encyclopedia to support the proposition that Calcium Carbonate is a mineral filler. It is seen from page 206 of the Encyclopedia that Calcium Carbonate or ground limestone is stated to be the most widely used industrial mineral for plastic applications. Three different processes of production namely grinding in water, dry grinding and chemical precipitation are recognised. It is also noted that Calcium Carbonate products are available in the course of ground medium ground, fine ground, ultra fine grades and precipitated grades. However, we are of the view that since Precipitated Calcium Carbonate produced by the appellants by application of chemical processes goes beyond the stage of mineral substance and becomes a separate chemically defined inorganic compound, it cannot be treated as a mineral substance falling under sub-heading 2505.90 of the Central Excise Tariff Act. 1985.
For the above reasons, classification of the product in question under Chapter 25 is ruled out.
11. What then is the correct classification of this product? The department has classified the uncoated variety under Chapter 28. Sub-heading 2836.90 which covers Carbonates other than Soda ash (2836.10) and Bio-carbonate of Soda (2836.20) and the coated variety under sub-heading 3823.00 which covers "Prepared binders for foundry moulds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products) not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified on included".
In terms of note 1(a) to Chapter 28, all separate chemical elements and separate chemically defined compounds, whether or not containing impurities, fall within this Chapter. As per note 2 to Chapter 28, heading 2836 covers Carbonates, peroxocarbonates of inorganic bases. Inorganic bases are referred to in sub-Chapter 4 of the HSN Explanatory Notes to Chapter 28 under heading 2814 and 2825. Heading 2825 of HSN refers to Calcium oxide. Hydroxide and peroxide in the pure state containing practically no clay, iron oxide, manganese oxide etc.) such as the product obtained by calcining Precipitated Calcium Carbonate. The appellants submit that the calcium hydroxide which is obtained by them by reaction of calcium oxide with water is not in the pure state and contains ingredients such as manganese oxide, silica, iron and metalic impurities and therefore, such calcium hydroxide would not be covered by heading 28.25. This submission is not tenable--sub-heading 2836.50 of the HSN covers Calcium Carbonate and Explanatory note 4 explains that Precipitated Calcium Carbonate (CaC03) included in this heading results from treatment of solutions of calcium salts with carbon dioxide. Since the appellants treats Calcium oxide with Carbondioxide precipitated calcium carbonate produced by the appellants is correctly covered by Chapter 28 of the HSN which excludes natural limestone (Chapter 25) and Chalk (Natural Calcium Carbonate) and Calcium Carbonate in powder form, the particles of which are coated with a water repellent film of fatty acids (stearic acid) (heading 3823). Similarly, since note"2 to Chapter 28 of the CETA 1985 covers Carbonate of inorganic bases, the product in question being obtained from Calcium oxide which is of inorganic basis, is covered by heading 2836 of the Schedule to the Central Excise Tariff Act. 1985 even though Calcium Hydroxide arises as an intermediate product in the process of manufacture of Precipitated Calcium Carbonate from limestone. Since heading 2836 of the Schedule to the Central Excise Tariff Act. 1985 covers Carbonates, the product in dispute which is Precipitated Calcium Carbonate is correctly classifiable under this heading, sub-heading 2836.90 (un-coated variety) and the coated variety is covered by sub-heading 3823.00.
In the result, we see no infirmity in the order of the lower Appellate authority and accordingly, upheld the same and reject the appeal.
S.K. Bhatnagar, Vice-President With due respect to Hon'ble Member (Judicial), my opinion and order are as follows:
The appeal relates to classification of Precipitated chalk (precipitated calcium carbonate) of two types namely coated and uncoated. Coated one is also called as activated calcium carbonate.
The appellants seek classification under heading 2505.90 whereas the Revenue seeks classification under Heading 2836.90.
The learned Counsel has described the process by which these products are obtained and claimed inter alia that this process does not amount to manufacture. We are unable to agree with this proposition because the process itself indicates that raw material is lime stone' whereas the product is a different commodity called precipitated chalk'.
The fact that chemically both lime stone and chalk are calcium carbonate does not make any difference because it is well known that these are two different commodities.
Limestone is a mined product and a well known mineral whereas the product obtained by subjecting this mineral to various processes results ultimately in a different form of calcium carbonate known as 'precipitated chalk'.
From the literature produced by the appellants themselves it is clear that a process of manufacture is involved.
Thus, the 'Encyclopedia of Chemical Technology' by Krik-Othmer shows that "Powdered calcium carbonate is produced by either chemical methods or by the mechanical treatment of the natural materials. The term, precipitated calcium carbonate, applies to the commercial types of the compound produced chemically in a precipitation process. The precipitated products are distinguished by a finer, more uniform particle size, a narrower size range, and a higher degree of chemical purity.
It is true that this book also shows that "Precipitated calcium carbonate is one of the most versatile 'mineral fillers' and is consumed in a wide range of products." At the same time on the very next page this Book indicates as follows:
Manufacturing & Processing Precipitated calcium carbonate can be produced by several methods but only the carbonation process is commercially used in the United States today:
Therefore the fact that item is called as "mineral filler" and is described as such even in the Book called "Modern Plastics Encyclopedia" wherein it is mentioned that the under heading 'Mineral fillers' as Calcium carbonate; but it is also significant that this is followed by the words or 'ground limestone' and another example is that of talc. Against under the heading 'Mineral fillers' Joseph R. Copeland mentions that 'Minerals, historically, have been referred to as fillers and extenders.
All this shows that precipitated calcium carbonate is being treated as mineral because it is derived from a mineral and it is, in this sense, that it has been treated by Experts in the technical field.
But that is not material from our point of view as further discussions would show. The learned Counsel has also drawn our attention to the Hawley's Condensed Chemical Dictionary and drew our attention to the calcium carbonate but what is significant from our point of view is note mentioned as follows:
Derivation: (a) Mined from natural surface deposits. (2) Precipitated (Made synthetically) Since the calcium carbonate occurs naturally also in the form of a chalk as well, therefore, it is understandable if such calcium carbonate (chalk) is considered a mineral. However. Precipitated (synthetic) calcium carbonate in the form of precipitated chalk cannot be considered as a mineral itself but only a product derived from a mineral substance.
Of course it can be derived by more than one methods. The learned Counsel has drawn attention to HSN to show that heading 28.36 covers only that precipitated calcium carbonate which results from the treatment of solutions of calcium salts with Carbondioxide and excludes calcium carbonate in precipitated form, particle on which are coated with precipitated filler (for example steel acide (38.23)). However, while our Tariff broadly patterned on HSN we have to be careful while dealing with the inclusion(s) or exelusion(s) given in the latter as it is observed in many instances, that Central Excise Tariff deviates from HSN and some of the inclusion(s) and exclusion(s) given therein are not incorporated in our Tariff. Therefore, we have to be cautious and unless such inclusion(s) or exclusion(s), definition and description are either built in or could be deemed to be included by necessary implication. Can we not apply them ?
Once it is admitted fact that 'precipitated calcium carbonate' can be manufactured or obtained by a number of processes unless one or more such process is shown to be included or excluded from a particular Chapter or heading, we cannot proceed on the basis of presumption that it is so included or excluded. As we have seen above while limestone is certainly a mineral substance and so was also calcium carbonate occuring naturally in the various forms including chalk in a mineral form, the Precipitated calcium carbonate being a product derived synthetically from the mineral form (lime stone) cannot be considered as mineral in its own right but only as a chemical product.
It cannot be excluded from Chapter 28 merely because the process of manufacture adopted by the appellants is different from the one referred to in HSN and some other technical literature as the Chapter does not confine itself to any particular process.
In so far as Chapter Note 2 of Chapter 25 is concerned, our attention has been drawn towards the words roasted' and 'calcined'. However, what has been lost sight of is that these words have been used with reference to the 'product' that has been roasted or calcined or obtained by mixing etc. In the present case, it is the raw-material limestone which is being roasted and calcined and not the product-precipitated chalk (coated/uncoated).
The learned Counsel is correct in drawing the attention to the fact that lime has been included in 25.05. But in view of the above facts and circumstances, it does not advance the appellant's cause.
Ld. D. R. is correct in pointing out that all forms of calcium carbonate or chalk are not covered by Chapter 25 as Billiard chalk of Chapter 95 and writing or drawing chalks and tailor's chalks of Chapter 96 have been excluded from Chapter 25.
The fact that precipitated calcium carbonate has not been so excluded, does not, however, help the appellant as it does not satisfy the criterion for inclusion as a 'mineral substance not elsewhere specified', under heading 25.05: In another words, even if precipitated chalk was considered as a mineral substance still it would not be covered under 25.05 if it could be shown that it was covered elsewhere.
The learned Counsel has referred to case law to show that precipitated chalk has been treated in the form of mineral filler by the Tribunal in its order in the case of Searsole Chemical Ltd.. and the case of Madhu Chemical [supra). However, the fact that for the purpose of notification No. 23/55 it was so treated also does not help the cause of the appellants for two reasons (i) that the Tribunal was dealing with the period of old Tariff and even there not with reference to the classification but in the light of the language used in a particular notification (which did not refer to Tariff Item and was concerned with the sense in which it was used there (i.e. in that notification).
And it was it this context that the Tribunal went to the extent of holding that the term mineral would cover both naturally occurring and synthetic mineral. We are. however, concerned herewith a product obtained from mineral substance by subjecting the latter to a variety of processes and in the form with which we are concerned, it is recognizable as a chemical--a defined inorganic compound of a type falling under Chapter 28.
The fact that precipitated calcium carbonate is used as fillers in various Industries such as Paper and Plastics or even as nutrient or diet or food aditive and is treated as mineral nutrient in the latter case, does not change the basic fact that the form of the product with which we are concerned is classifiable under Chapter 28 for the reasons discussed above.
I, therefore, agree with the conclusion of my learned colleague that precipitated calcium carbonate is classifiable under 2836.90. I am, however, unable to persuade myself to agree that we are required to distinguish between the coated and uncoated variety, because our Tariff does not given any indication to this effect. Heading 2836.90 covers carbonates and sub-heading 2836.90 covers "other" i.e., other than these mentioned in the preceding sub-heading but it does not distinguish between coated and uncoated varieties.
Again Chapter 38 covers 'Miscellaneous chemical products' and even under that title 38.23 is only a residuary entry which is required to be applied only in respect of miscellaneous chemical products not elsewhere specified and falling in one of the categories indicated therein.
Once we have held that precipitated calcium carbonate (precipitated chalk) falls under Chapter 28. we cannot take recourse to 38.23 merely because HSN excludes the coated variety from the former as there is no indication in our Tariff to this effect.
It is ordered accordingly.
POINT OF DIFFERENCE In view of difference of opinion between Hon'ble Member (Judicial) and the Vice-President, the matter is submitted to Hon'ble President, the matter is submitted to Hon'ble President for referring it to a Third Member on the following point:
Whether coated variety of precipitated calcium carbonate (Precipitated chalk) was classifiable under 3823.00 or 2836.90.
DIFFERENCE OF OPINION Appeal No. E/273/96-C Lajja Ram, Member (T)
1. The issue for consideration in his difference of opinion matter is whether the coated variety of Precipitated Calcium Carbonate (Precipitated Chalk) was classifiable under sub-heading No. 3823.00 or sub-heading No. 2836.90 of the Central Excise Tariff.
2. I have heard Shri Sekhar Vyas, Advocate, who appeared for the appellants. M/s. Gulshan Sugar & Chemicals Ltd. Shri Satnam Singh, SDR represented the respondent/Revenue.
3. I have gone through the facts of the case and the orders proposed by the Id. Vice-President and Id. Member (J) and have also gone through the submissions made by both the sides.
4. The appellants had sought classification of their product--precipitated chalk and calcium carbonate both uncoated or coated under sub-heading No. 2505.90 of the Central Excise Tariff. The Asstt. Collector of Central Excise, Muzaffarnagar, classified the uncoated variety under sub-heading No. 2836.90 and the coated variety under sub-heading No. 3823.00 of the Central Excise Tariff. Both the Id. Vice-President and the Id. Member (J) had rejected the plea of the appellants that their goods were classifiable under sub-heading No. 2505.90. There is also no difference of opinion that the uncoated variety was classifiable under sub-heading No. 2836.90. As regards the coated variety, the Id. Vice-President had observed that in the Central Excise Tariff, there was no distinction between the coated and uncoated variety and that once it was held that precipitated calcium carbonate (precipitated chalk) was classifiable under Chapter 28, no recourse could be taken to Heading No. 38.23. On the other hand. Id. Member (J) had relied upon the HSN Explanatory Notes and had held that the coated variety of precipitated calcium carbonate was classifiable under sub-heading No. 3823.00. Both the Id. Vice-President and the Id. Member (J) had agreed that the uncoated variety was classifiable under sub-heading No. 2836.90.
5. The Asstt. Collector of Central Excise, Muzaifarnagar had classified separately the uncoated precipitated calcium carbonate and coated precipitated calcium carbonate. The appellants' contention had been that their products both coated and uncoated variety qualified to be classified under Chapter 28. This contention had been rejected by both the Id. Vice-President and the Id. Member (J). The appellants have advanced no arguments against the classification of coated variety under Heading No. 3823 of the Tariff. They had stated as under:
The basic issue involved in the above appeal was about the uncoated Calcium Carbonate which would fall under Heading 2836.90 as claimed by the Department and under Chapter Heading 2505.90 as claimed by the appellant. Both the Hon'ble Members who heard the original appeal had held that the uncoated Calcium Carbonate in question would fall under Heading 28.36 and thus, both the Hon'ble Members had unanimously decided this point against the appellants. In respect of the coated variety, the Hon'ble Member (Judicial) has decided the classification under Heading 38.23. The Hon'ble Vice-President has, however, classified under Heading 28.36. Even here both the Hon'ble Members have not accepted the appellants' claim under Chapter 25. This is even on coated variety. Though, both the Members have indicated differing classifications, both are against the appellants since the appellants have claimed classification under Chapter 25 has been rejected. The rate of duty between headings 28.36 and 38.23 is practically uniform at all material times. The assessee has no real benefit of either of these classifications. It is prayed that the Hon'ble Third Member may decide the difference of opinion on this aspect in the light of the above factual position.
6. In view of the above, I agree with the Id. Member (J) that there was no infirmity in the order of the lower appellate authority and the appeal was liable to be rejected.
ORDER
7. In view of the majority opinion, the appeal is rejected.