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1 - 3 of 3 (0.17 seconds)Heveacrumb Rubber (P) Ltd. vs Superintendent Of Central Excise on 30 June, 1983
3. The Ld. Advocate, further, submitted that as the show cause notice did not place any reliance on any test report, the same should not have been relied upon by the Assistant Collector for the purposes of the proceedings; that notice did not give any other grounds or state any other reasons for classifying the product under 3209.90 and as such notice had no evidentiary basis and even the legal basis; that it wanted to change the classification without stating any reasons as to why the proposed classification was more appropriate; that the notice was required to disclose some evidentiary basis in the form of commercial enquiry or test reports to justify the proposed classification and as such the notice was non-speaking and totally vague. He also contended that the Collector (Appeals), in first order in appeal, directed the Assistant Collector to adjudicate de novo after proper examination of the Test report of the chemical examiner and also giving proper opportunity to the Appellants to put forth their case; that the direction did not imply that the Assistant Collector was not required to look into the question of admissibility of the test report; that the present order is vitiated being based on evidence subsequently introduced. He, further, contended that the Chemical Examiner has, in respect of samples, stated that the samples had the characteristic properties of distemper and as such the product should have been classified under sub heading 3210.90 and not 3209.90; that nowhere chemical examiner had stated that the impugned products were paints and varnishes based on synthetic polymers etc. He stated that the impugned products are a thick pasty mass and are applied for like gravel and cement when used for plastering and are not recognised in the trade as paints and varnishes or distemper; that paints and varnishes have homogeneous properties with solid/solvent ratio duly controlled to give smooth tack free coating and are marketed in maximum 4/10 kg. containers and not in 35 kg. containers unlike their products, that glue was not present in impugned products. He also referred to the Explanatory Notes of HSN (Page 402 and 403) below heading 32.08 and 32.09 wherein it is mentioned that the headings do not cover "surfacing preparations for walls, floor, etc. based on plastic with the addition of a high proportion of fillers and which, like conventional, plastics are applied with a spatula, trowel, etc. (heading 32.14)." The Ld. Advocate relied upon the decision in the Haveacrumb Rubbers (P) Ltd. v. Superintendent of Central Excise 1983 ELT 1685 (Ker) : 1983 ECR 1121D (Ker) to emphasise that it is for the Department to allege and substantiate prima facie as to why a particular tariff item is taxable under a particular tariff entry and since the assessee is entitled to know the basis on which the Revenue proceeds to assess a particular product, the opportunity given to him, must be real and effective and not illusory and a make believe. He also referred to the definition of paint in a dictionary according to which paint is a uniformly dispersed mixture having a viscosity ranging from a thin liquid to a semi liquid paste and consisting of (1) a drying oil, Synthetic resin, or other film forming component, called the Binder, (2) a solvent or thinner and (3) an organic or inorganic pigment. He also gave distinguishing features of both Emulsion paints and varnish and paints on one side and Mourtex Texturised coatings non refractory surface preparations to show that both are different products and the impugned product does not merit classification under sub heading 3209.90 of the Tariff.
Swastik Metals vs Union Of India (Uoi) on 6 December, 1989
He finally referred to the decision of Rajasthan High Court in Swastik Metals v. U.O.I. wherein it was held that when there is an uncertainty to determine the nature of product on the basis of dimensions, classification should be on the basis of the Mill in which it is manufactured.
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