9911796707
TMI Blog2022 (9) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... mited vs. Commissioner of Customs, Kandla - 2018 (12) TMI 1046 - CESTAT AHMEDABAD. 3. Shri R P Parekh, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of record we find that the facts in the case cited by the appellant and in the present case are absolutely identical inasmuch as in the present case also the HDPE contains 2% Carbon Black. The department has denied the exemption on the ground that exemption is available only to the HDPE and not for the HDPE compound whereas in the present case the HDPE is compounded with 2% Carbon. On the identical facts, this Tribunal in the above cited judgment pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant or by the Revenue in support of their case. The Revenue has not got even the test certificate from the Government laboratory which was essential in this case. Whether the product is a chemically modified HDPE or not and whether it is known 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Id. commissioner has taken a view that adding a carbon black results in chemically modifying the HDPE. It is not the case of the appellant that addition of carbon black does not result in any chemical modification. The carbon black is added for the purpose of colour and strength. The appellant also submits that only chemically modified polymers are different and otherwise, they are to be treated as HDPE. Further, they also submitted that the test certificate given by the supplier clearly indicate that the goods are not chemically modified HDPE. In our opinion, the lower authorities have not been fair. On the one hand, they relied upon the test certificate of the supplier to hold that addition of carbon black results in chemical modificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of U.P. AIR 1980 SC 1762 Krishna Iyer J. has pointed out that- "Every new discovery or new argumentative novelty cannot undo or compel re-consideration of a binding precedent. In this view, other submissions sparking with creative ingenuity and presented with high pressure advocacy cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic fundamental rights case." 8. In these circumstances, the impugned Order-in-Appeal is not sustainable and the same is set aside. The appeal is allowed with consequential relief, if any." 6. From the above two judgments of this Tribunal it can be seen that very identical issue of the present case has been decided in favour of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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