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In all those cases the Tribunal had held that before any chemical could be classified under T.I. 65, it would be necessary for the Department to establish that the said chemical was predominantly used as a rubber processing chemical. Shri Chandrasekharan submitted that in none of the cases before us had the Department established that the goods were predominantly used as rubber processing chemicals. They had been classified under T.I. 65 on the ground that they were used as "Anti-oxidants" and that they could be used as anti-oxidants in the processing of rubber. Shri Chandrasekharan submitted that there was no dispute that the appellants were using the goods as anti-oxidants, but this was not for the processing of rubber, but in the manufacture of polyethylene. In the light of the decisions relied upon by him, the mere fact that certain goods were used as anti-oxidants would not bring them within the scope of T.I. 65, unless they could also be described as rubber processing chemicals, and this could only be done if the Department could prove that the predominant use of the goods was as an anti-oxidant in the processing of rubber.

27. The goods were imported from a French manufacturer. The literature furnished shows that they are an anti-oxidant. Various uses have been shown, including use for low and high density polyethylenes, in PVC, in certain rubbers, in paraffin wax used in the manufacture of waxed liners and waxed boards for food wrappers, etc. There is nothing to indicate that the use in rubbers is the predominant use.

28. In his order on the "Jaladurga" consignment, the Assistant Collector referred to the literature submitted by the appellants. He held that "although the goods may have multifarious uses one of its well recognised and established uses is as rubber antioxidant. The rubber antioxidants fall under Item 65 C.E.T." In his order on the "Alcoutim" consignment, the Assistant Collector observed that the literature produced showed that the product under reference had uses in rubbers. He went on to observe "in view of this, the party's contention that it is not rubber chemical, is not correct and therefore the claim is not admissible".

41. In this case, as in the other cases, the lower authorities have clearly not discharged the burden of showing that the goods are a rubber antioxidant. Their main reliance has been on the description given by the appellants themselves in the Bill of Entry. It has been held by the Supreme Court in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. v. Union of India and Ors. 1983 E.L.T. 1566 (S.C.)) that the fact of a certain description having been given by the importers in the Bill of Entry would not stand in the way of their seeking refund later, since there is no estoppel in law against a party in a taxation matter. The description in the Bill of Entry need not therefore be taken as in the nature of an estoppel. At the same time it cannot be ignored when considering the nature of the goods and their predominant use. The explanation given by the appellants is that the declaration in the Bill of Entry followed the description in the Bill of Lading, which was in accordance with the U.S. Commodity Code. This again raises the question whether the predominant use of the goods was as a rubber antioxidant, since the Commodity Code would be expected to have taken into account the predominant use of the goods.

42. We, therefore, find that in this case there is an element of doubt regarding the predominant use of the goods. On the one hand we have the U.S. Commodity Code, according to which it is a rubber antioxidant; on the other hand, we have the reasoned decision of the former Appellate Collector in the light of the literature and trade practice etc., to the effect that the ordinary use of the goods was not as a rubber antioxidant. We then have to come back to the proposition that the burden of showing that the goods came within the scope of T.I. 65 was on the Department. We have to ask ourselves whether the lower authorities in the cases before us had discharged the burden. The answer is plainly in the negative because, apart from the Bill of Entry description they have not given any reasons to show that the predominant use of the goods was as an antioxidant for the processing of rubber. We have therefore to hold, on the evidence before us, that the lower authorities did not discharge the burden of bringing the goods within the scope of T.I. 65.