TMI Blog1980 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tariff. The claims had been rejected by the Assistant Collector of Customs as time-barred in view of the period of limitation prescribed under Section 27 of the Customs Act, 1962. The Appellate Collector has confirmed the Assistant Collector's order rejecting the refund claims as time-barred. 3. Revision application dated the 4th October, 1976 is against order No. 1373/76, dated the 28th May, 1976 passed by the Appellate Collector of Customs, Calcutta. Here also, the goods were L.P. Biscuit Material only but before the Assistant Collector, the petitioners did not make a claim for the refund of C.V. duty paid under Item 15A(1)(ii) of the C.E.T. but they claimed refund on the ground that the goods in question should have been assessed at preferential rates of Customs duty under the India-Yugoslavia Trade Agreement. Subsequently, however, before the Appellate Collector, the petitioners shifted their ground of claim and pleaded that they should be given refund of the C.V. duty paid under Item 15A(1)(ii) of the C.E T. The Appellate Collector rejected the petitioner's claim regarding assessment at preferential rate and in respect of their claim for C.V. duty under Item 15A(1)(ii), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51B/78, dated 22-2-1978 in the case of M/s. Vifor Laboratories (India) Ltd.; (c) In view of the pronouncements of the Government communicated to the trade by way of advice in the aforesaid two trade notices and the Government's two earlier decisions in revision, it was pleaded that Government was bound to hold that modified resins were outside the scope of Item 15 A (1) (ii) of the C.E.T. as it amounted to a premise made to the public. In view of the demands of equity and the several judicial pronouncements particularly the Supreme Court decision in Anglo-Afgan's case (AIR 1968 SC 718) on the doctrine of promissory estoppel, Government was estopped from taking a different view from the one communicated in the trade notices and the two orders in revision. 7. In any case so far as L.P. Biscuit material was concerned the Government had in the petitioners own case held vide order No. 3186/1974, dated 10-7-1974 that this was not PVC resin in pure and straight form eligible for concessional assessment in terms of Notification No. 69-Cus., dated 15-6-1968. If L.P. Biscuit Material was not PVC in its pure and straight form, it followed that the material-in question was a modified resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... composed of pigment and synthetic resin of PVC and PVA type and that these were in the form of granules. The petitioners themselves have produced a report of Prof. S.P. Potnis of the Department of Chemical Technology. The substance of the report of Dr. Potnis is that the polymer used in the goods is PVC-PVA copolymer and not pure PVC homopolymer. Use of copolymer was necessary to give the required characteristics to the compound. Dr. Potnis has also stated in this report that the addition of metallic stabilisers, lubricating waxes and colouring matters and compounding, changes the basic characteristics of the copolymer. He has further stated that the copolymer becomes modified in its physical, thermal and mechanical properties and is different from original; copolymer resins. The question whether addition of a certain amount of lubricating waxes and colouring matters etc., makes the copolymer modified, will be discussed a little later. The one conclusion, however, which clearly emerges from the report of Dr. Potnis is that B.P. Biscuit Material is a PVC-PVA copolymer and not a homopolymer of PVC. 12. The test certificates issued by National Test House, Alipore produced by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the homopolymer alone. Copolymerisation of PVC and PVA in view of the separate mention of PVC and copolymer in Item 15A, CET stood at a different footing from modified PVC. The impugned goods are undisputedly a copolymerisation product and not modified PVC. Whereas polymerisation products are obtained by the union of several simple molecules of the same chemical constitutions (monomer) with multiple carbon bonds, copolymerisation products are obtained from single molecules of different chemical constitutions. In organic chemistry the former is known as homopolymer and the latter as a copolymer. They have two different and distinct identities as such. This view is supported by ASTM, ISI Specifications and the General Notes to C.C.C.N. The same view is also expressed in "Organic Chemistry : The Fundamental Principles" edited by I.L. Finer, Vol. I, V Edn. at page 90 and 92. Government further observe from the book entitled `Encyclopaedia of Polymer Science and Technology, Inter Science Publication, Vol. 14 that only the homopolymers of vinyl chloride is referred to as PVC and copolymers of PVC are dealt with under a different heading therein. ASTM designation D-88.3-64 DT relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods were PVC/PVA copolymer, had advanced the argument that PVA modified PVC in the firm of PVA/PVC copolymer and since PVC in a modified form fell outside the purview of item 15A(1)(ii) in terms of the Calcutta Customs Public Notice, copolymer also thereby fell outside the purview of the aforesaid tariff entry. This line of argument which has the effect of giving primacy to Public Notice over the specific entry in the tariff is certainly against the legislative intent and is therefore untenable. 18. In view of the above Government are of the considered view that the L.P. Biscuit Material imported by the petitioners was a copolymer of PVC and PVA with small addition of lubricants stabilizers and colouring material and it is neither modified PVC nor modified copolymer of PVC and PVA. 19. After determining the exact nature of the goods, it is to be seen whether or not the goods imported were outside the ambit of Item 15A(1)(ii) of the CET. The entry as it stood at the relevant time, reads as follows :- "Polymerisation and copolymerisation products including ..... polyvinyl chloride, polyvinyl acetate ...." The entry therefore covers polymerisation products and also copo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no estoppel against the statute in this behalf more so when on the basis of technical literature and test reports it is clearly proved that these were not modified PVC but only a copolymerisation PVC and PVA with small addition of lubricants, stabilizers and colouring material. Further, the Audit report proceeds on a wrong premise that L.P. Biscuit Material contained 99% PVC resign which is factually incorrect as the test reports already discussed show that the composition undisputedly is PVC 85 parts PVA 13.5 parts and other materials 1.5 parts. The report is apparently based on a wrong appreciation of the composition of L.P. Biscuit Material. 22. The petitioners had also referred to another order of the Government No. 3186/74, dated 10th July, 1974 where Government had denied them the benefit of preferential rates in terms of Notification No. 69-Cus., dated 15-6-1968 in respect of an import from Yugoslavia on the ground that L P. Biscuit Material were not PVC in pure and straight form. The petitioner's plea is that as the Government itself had held that the goods imported were not PVC in pure and straight form and therefore it followed that the goods imported are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
