TMI Blog2000 (8) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification lists covered total number of 30 items bearing 30 different product codes of Bituminous mixtures. As per the appellants the said items were being manufactured by them by using only Bitumen/Asphalt/Mineral tar pitch and thinners/solvents. The Revenue drew samples of 9 items out of 30 different items. Out of the said samples relating to 9 items, the test reports have been supplied to the appellants only in respect of 4 items. Admittedly there is no test report relatable to remaining 5 items of which samples were drawn or in respect of the balance items for which no samples were drawn at all. 3. Test reports conducted by the chemical examiner in respect of 4 samples were part of the show cause notice issued on 16.5.88 to the appellants. As per this test report, the samples were black coloured free flowing liquid compound of Bitumen in volatile organic solvent and the same gave tack free transparent adherent coating. During adjudication the appellants requested for re-test and thereafter samples were sent to Central Revenue Control Laboratory (hereinafter referred to as CRCL) on 8-12-1988. The report of CRCL was given on 7-2-1990 which was to the effect that two of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction records and for which the Revenue has not adduced any evidence to shift the classification to heading 32.10. 8. As regards the 4 products we find that the impugned orders are based upon the second test report of CRCL and the fact that the appellants were classifying their products under Erstwhile Heading 14 prior to 28-2-1986 which belonged to paints and varnishes. The appellants contention is that the Erstwhile Tariff Item No. 11(4) did not mention about the Bituminous mixtures and the same were specifically mentioned under Erstwhile Tariff Item No. 14(2)(ii) which specifically covered Bituminous and Coal tar blacks. However, w.e.f. 28-2-1986 the entire tariff structure was changed and the Bituminous Mixtures came to be specifically mentioned under sub-heading on 27.15. For better appreciation of the appellants contention we reproduce below the relevant Erstwhile Tariff entries as also the present tariff entries under disputes : ERSTWHILE TARIFF Item 11. Coal (excluding lignite) and coke, all sorts, including calcined petroleum coke, asphalt, bitumen and tar- 4. Asphalt and bitumen (including cutback bitumen and asphalt) natural or produced from petroleum or sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first report of the chemical examiner in respect of 4 items, the same is to the effect that sample consisted of black coloured free flowing liquid compound of Bitumen in solvents. As such even according to the said report no other material was used for the manufacture of the goods in question. As such it makes it clear that the products manufactured by the appellants composed of nothing other than black Bitumen and solvents. The factual position stressed by the appellant to this effect before the Asstt. Commissioner has not been disputed or rebutted by the Revenue. As such we find that the goods in question are more appropriately classifiable under Heading 27.15. 11. Shri Bagaria has also taken us to the definition of cut-back as appearing in various dictionaries. For better appreciation we reproduce the same :- Glossary of Terms - M/s. Burmah Shell Storage Distribution Co. of India Ltd. Cutback : Bitumen, the viscosity of which has been reduced by volatile diluent . Organic Coating Technology volume II - by Henry Fleming Payne. Solutions of bitumen in solvent without fillers. 12. The aforesaid tests of cut-back Bitumen are satisfied in the appellants case as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is clear from the fact that in the purported reports of CRCL, in respect of two samples it was alleged that the same also composed of epoxy resin. This was simply impossible inasmuch as no epoxy resin was ever used at the appellant s factory in manufacture of the said goods. In fact, no such allegation about use of any epoxy resin was made either in the show cause notice or in the reports of Departmental Chemical Examiner, Calcutta. On the other hand, the Departmental Chemical Examiner, Calcutta had clearly stated in his reports that the samples only consisted of free flowing liquid compound of bitumen in solvents. Thus, when there was no presence of epoxy resin in the samples at the time of testing thereof by the Departmental Chemical Examiner at Calcutta, the same very samples could never contain epoxy resin when tested after about more than one year and particularly when the appellant never used any epoxy resin in manufacture of the said goods and when this position was also quite clear from its production records. (iv) With regard to the purported observation of CRCL in respect of two of the said three samples to the effect that the same were other than cut back asphal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucing agents (other than asphalt, bitumen, tar or pitch), the ability to dry on exposure to air in the manner of paints or varnishes and the thinness and hardness of the film formed The appellants have submitted that from the aforesaid clause, the following specialities or distinguishing features of Bituminous paints and varnishes falling under Heading 32.10 emerges :- (i) Bituminous paints and varnishes have got greater fitness of the fillers. In the appellant s products in question, no fillers were used. (ii) Bituminous paints and varnishes have got the presence of one or more film producing agents (other than asphalt, bitumen, tar or pitch). In the present case this condition or ingredient is not at all satisfied. The goods in question are made simply by using bitumen, asphalt tar or pitch etc. and diluting the same in solvents. No other film producing agent is used in manufacture of the said goods. iii) The said bituminous mixtures/cut-backs manufactured at the appellant s factory have got much longer drying time which is in no manner similar to paints or varnishes which dry much faster. We agree with the above submission of the ld. adv. that HSN explanatory notes al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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