TMI Blog2007 (5) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 10-2-2000 on the ground that the appellant was not entitled for concessional rate of duty under exemption Notification No. 72/91-Cus. Adjudicating authority in the impugned order demanded differential duty amounting to Rs. 1,05,12,925/-. Further he ordered confiscation of the goods under Section 111(o) of the Customs Act, 1962. He imposed a redemption fine of Rs. 50 lakhs under Section 125 of the Customs Act, 1962. He imposed a penalty of Rs. 50 lakhs on the appellant under Section 112(a)(ii) of the Customs Act, 1962. The appellants urged highly aggrieved over the impugned order, hence they have come before this Tribunal for relief. 3. Shri V. Sridharan, learned Advocate appeared for the appellant and Shri Ajay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly relied on the test report of the Deputy Chief Chemist. (vi) The Commissioner in the impugned order has referred to and relied upon the order dated 19-11-1993 and the show cause notice dated 22-3-1993 issued by the Commissioner of Customs in respect of imports made earlier to reject the various contentions raised by the appellants in the present reply to the show cause notice dated 10-2-2000. It is a settled law that each show cause notice is a separate and independent proceedings and the same cannot be relied upon in a subsequent proceeding. Further, the appellants were not put to notice that reliance will be placed on the earlier order passed on the subject. (vii) The imports took place in the present case during 1992-93. In the nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndensation reaction of a polyisocyanate and a Polyol is a thermoplastic polymer. (x) The appellants submitted a sample of the product to Shriram Institute for Industrial Research and obtained their opinion. According to the said institute, the impugned goods are thermoplastic polyurethane foam. The opinion of the institute is in accordance with Hawley's Condensed Chemical Dictionary an the Handbook of Plastics and Elastomers edited by Charles A. Harper. (xi) According to the supplier of the imported goods M/s. Bayer, the polyurethane foam obtained by the appellants out of the polyol and isocyanate supplied by them result in thermoplastic polyurethane and not thermoset polyurethane. This clarification was given by them after testing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s small molecules is rather weak and therefore they easily change their shape on application of heat. However, in the case of thermostate plastic in view of the cross linkage the material is very rigid. He invited our attention to the Deputy Chief Chemist's report and urged that the test report of the Deputy Chief Chemist should be given preference over the other test report submitted by the appellant. He relied on quiet a few decisions. He also stated that the test report submitted by the appellant are actually solicited and therefore no weightage should be given to them. He urged that the appellants had manufactured polyurethane foam of thermostate plastic and therefore are not entitled for benefit of the exemption notification. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Unfortunately Shri S.D. Subramanium was not available for cross examination as he had expired. However the supplier M/s. Bayer, a well known manufacturing company and also Shriram Institute for Industrial Research have certified that sample of goods manufactured by the appellant have character of thermoplastic polyurethane. The Standard Text Books also reveal that in reaction between polyols and isocyanates (which the appellant imported), Thermoplastic Polyurethane emerges. There is no reason for rejection of the technical opinion of M/s. Bayer and also Shriram Institute for Industrial Research which are based on the test report of the samples of the goods manufactured by the appellant. We reproduce below the opinion of Shriram Institute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your foam after crushing can be compression moulded into sheet and pieces of the same sheets can again be remoulded into fresh sheet. We have also found out that foam is greatly affected by solvents and not only than foam is distintegrated by solvents, it substantially dissolves and therefore it cannot be classed as thormoset. 5. As has been stated in Para 4 above, it can be safely concluded that the foam produced from your formulation is a thermoplastic." 7. The adjudicating authority has not given proper reasoning for rejecting the above test report. It cannot be said that the appellants have not fulfilled the conditions of the said exemption notification. Hence, the goods are not liable for confiscation under Section 111(o) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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