TMI Blog2013 (9) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment controlled laboratory, if the test report of the supplier was relied upon it had to be fully considered - The Revenue had not applied even after the trade parlance test. High Density Polyethylene was classified under Heading 39.01 and the said classification was not disputed - Therefore, the imported goods were indeed polymer of ethelene for the purposes of Heading 3910 - the goods had been described in the notification on the basis of tariff description Sl. No. 477 of the Notification borrowed the language of the tariff Heading 39.01 will get exemption under sl. no. 477 of the notification - Ambica Prasad V. State of U.P. [1980 (5) TMI 100 - SUPREME COURT] - Every new discovery or new argumentative novelty cannot undo or compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voice packing list, certificate of origin, certificate of analysis and manufacturer's letter along with manufacturing process of the above imported goods. The lower adjudicating authority denied the benefit of the aforesaid exemption Notification on the ground that the goods are black compounded HDPE polyethylene and exemption is available to only to Single Thermoplastic items such as HDPE, LDPE, LLDPE etc. and not compounded Thermoplastic material and as such the Bill of Entry was assessed @ 7.5% Basic Duty instead of @ 5% BCD claimed by the importer. The appellants challenged the order before the Ld. Commissioner (Appeals) who in turn upheld the lower adjudicating authority's order. Hence the appeal. 4. The contention of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanatory notes, primary form includes liquids, pastes, powder, granules and flakes. The contention is that as per the HSN Explanatory Notes, the goods falling under Heading 39.01 may contain substances such as plasticizers, stabilizers, fillers and colouring matter etc., still the goods will be treated as HDPE polymer only since the impugned goods are in the form of granules. The contention is that the certificate issued by the supplier of the goods shows that the imported goods are HDPE containing 2.5% of carbon black to make it fully stabilized against influence of ultraviolet radiation. Further the data sheets produced also describe that the imported goods contain very well dispersed, fine particle sized carbon black in order to ensure e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity (compound) as 952 kg/m3. The purchase order also mentions it as Black Compounded High Density Polythylene for pipe coating HE 3450. The notification under reference provides concessional rate of duty to the HDPE and not to the Black Compounded HDPE. 5.2 So far as the appellants' reliance on the Tribunal's order No. A/10203/WZB/AHD/2013 dated 1.1.2013 in Appeal No. C/207/2012 in case of` Ratnamani Metal Tubes Ltd., the contention is that the present case is different from the case of M/s. Ratnamani Metal Tubes and the appellants themselves declared the goods as Black Compounded High Density Polyethylene in all the documents and the goods are bought and sold as such in the international market. Therefore, the goods are no doubt com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the records. The appellants imported Black Compounded High Density Polyethylene and claimed classification under sub-heading 39012000 at the rate of BCD at 5% in terms of Notification NO. 21/2002-Cus dated 1.3.2002. The department accepted the classification. However, denied the benefit of Notification on the ground that the notification grants exemption to HDPE whereas the goods are Black Compounded High Density Polyethylene. Undisputedly, the goods imported contained 2.5% carbon black. The impugned goods are in the form of granules is also not disputed. It is a settled principle of law that Customs Tariff is based on HSN and in case of doubt HSN is a safeguide for ascertaining the meaning of any expression used in the Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as HDPE in the market, has not been considered at all. In the absence of test conducted by the Government controlled laboratory, if the test report of the supplier is relied upon, it has to be fully considered. The Revenue has not applied even after the trade parlance test. 9. At this stage, it may be worthwhile to note that in the case of M/s. Plastic Colour Corporation, the assessee was engaged in making shipping compounds by adding 2.5% carbon black HDPE granules. This activity was finally held to be not amounting to manufacture and the matter has reached finding like Hon'ble Supreme Court which held it so." 7. We find that the aforesaid decision is squarely applicable to the instant case and the department has not challenged the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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