TMI Blog1996 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of recomputation of excise duty liability during the relevant period as held hereinabove - 453 of 1986 - - - Dated:- 6-11-1996 - S.P. Bharucha and S.B. Majmudar, JJ. [Order per : S.B. Majmudar, J.]. - This group of appeals arising from diverse orders passed by Customs, Excise Gold (Control) Appellate Tribunal (hereinafter referred to as `CEGAT') can be conveniently classified into three categories of cases. Category (1) consists of Civil Appeal Nos. 3105 (NM) of 1988; 1768 (NM) of 1990; 3284-85 (NM) of 1990; 5929 (NM) of 1990 and 6263 (NM) of 1995 filed on behalf of Revenue by the Collectors of Central Excise, concerned, wherein it is contended that preparations from silicone as manufactured by the respondent-manufacturers at the relevant time were covered by Central Excise Tariff Item 15A(1) and not by Tariff Item 15AA as contended by the respondent-manufacturers and as upheld by the Tribunal. Category (2) consists of Civil Appeal Nos. 1942-53 of 1988; 2162-70 (NM) of 1988 and 3657-72 (NM) of 1990 moved by M/s. Hico Products Ltd. being aggrieved by the diverse orders of the Tribunal which has taken the view that silicone oil manufactured by them and/or imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h no reasonable man well acquainted with the subject could arrive at or are otherwise erroneous in law or based on no evidence. Keeping in view these contours of enquiry in these statutory appeals we may now proceed to deal with the main contentions canvassed by learned counsel for the Revenue in support of its appeals. It was vehemently contended before us that the five- Member Bench of the Tribunal had erred in taking the view that silicone preparations were covered by Central Excise Tariff Item 15AA and not Tariff Item 15A(1) which held the field at the relevant time when the concerned goods ware manufactured and when their exigibility to duty was to be considered. Tariff Item 15A(1) as applicable at the relevant time reads as under : "15A. Artificial or Synthetic resins and plastic materials; and other materials and articles specified below : (1) Condensation, polycondensation and poly-addition products, whether or not modified or polymerised, and whether or not linear (for example, pheno-plasts, amino-plasts, alkyds, polyallyl esters and other unsaturated polyesters, silicones); polymerisation and co-polymerisatioin products (for example; polyethylene, polyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... densation and poly-addition products whether or not modified or polymerised and also refers to esters and other unsaturated polyesters, silicones. The products prepared out of silicones by mixing them with other diluting agents like water etc. are not within the sweep of the said Item. On the other hand if such imported silicone oil is diluted and mixed with water so that the mixture can be utilised as organic surface agent or as surface-active preparations and washing preparations it would be Tariff Item 15AA which would squarely get attracted. It has been held by the Tribunal in the judgment under appeal that silicone oil which was imported by the manufacturers was mixed with water and other diluting agents and such silicone preparations prepared by utilising imported silicone oil on which admittedly countervailing duty was paid under Tariff Item 15A(1) itself, could not be considered to have remained silicone itself but would be treated to be products almost akin to surface-active preparations, wetting agents, softeners and, therefore, liable to be classified under Item 15AA. It has to be kept in view that the silicone oil which was imported by the concerned manufacturers was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lp in the use of the preparations in the desired industry application." We do not find any error of law or any perversity in the reasoning adopted by the Tribunal on the facts of these cases. On the contrary in our view the decision of the Tribunal is well sustained on the evidence on record and calls for no interference in these appeals moved by the Revenue. Category (2) 3. That takes us to the consideration of appeals by the assessees comprised in Category (2). So far as these appeals are concerned the main grievance was voiced by learned counsel for the appellant in Civil Appeal Nos. 1942-53 of 1988. The learned counsel submitted that silicone oil imported by the appellant at the relevant time was governed for the purpose of customs duty and countervailing duty not by Tariff Item 15A(1) but the residuary Item 68 and accordingly, it would be covered by Chapter 38 of the Customs Tariff of India 1985-86 which held the field at the relevant time and would be out of Chapter 39 thereof. So far as this contention is concerned a close look at Tariff Item 15A(1) of the Central Excise Tariff which would be relevant for deciding the countervailing duty liability of the appellant-impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondensation, poly-addition etc. but his submission is that in the historical background of amended Item 15A(1) it should be held that the said Item along with its Explanations only covered those types of silicone products which resemble resins. In order to support this contention he invited our attention to Chapter 39 of Customs Tariff of India 1985-86 and submitted that Heading 39.01/06 covered only resins and not liquids like silicone oil imported by the appellant. The said heading reads as under : "Heading No. Sub-heading No. and description of article Standard Rate of duty Central Excise Tariff Item (1) (2) (3) (4) (5) 39.01/06 Condensation, polycondensation and poly-addition products, whether or not modified or polymerised, and whether or not linear (for example, phenoplasts, aminoplasts, alkyds, polyallyl esters and other unsaturated polyesters, silicones); polymerisation and co-polymerisation products (for example, polyethylene, polytetrahaloethylenes, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloroacetate and other polyvinyl derivatives, polyacrylic and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case before the Tribunal it was held that the products concerned could be treated as water treatment chemicals and not as artificial resins so as to attract Chapter 39 of the Customs Tariff. We fail to appreciate how the said decision can be of any avail to the appellant on the facts of the present case. Learned counsel for the appellant next contended that the earlier Tariff Item 15A of the Central Excise Tariff which was earlier pressed in service by the appellants and which contention was accepted by the Revenue was almost identical with the amended Item 15A(1) save and except addition of some further items but for applicability of Item 15A(1) it had to be shown that the concerned product was artificial or synthetic resin or an article made up therefrom. It is not possible to agree. The whole Tariff Item 15A(1) underwent a sea change when it was amended in 1982 and came on the Statute Book. The Explanations II and III to this amended Item were not existing on the Statute Book when earlier Tariff Item 15A(1) held the field. Consequently it cannot be said that the amended Item 15A was almost pari materia with the earlier Item 15A as contended by learned counsel for the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Category (3) 4. That takes us to the consideration of two appeals comprised in Category (3). So far as Civil Appeal No. 453 of 1986 moved by M/s. Reliance Silicon (I) Pvt. Ltd is concerned, the commodities manufactured by them which are in dispute before us are silicone oil and also other silicone preparations like emulsions. In view of our discussion while disposing of Civil Appeals comprised in Categories (1) and (2) it must be held that silicone oil manufactured by them would squarely be covered by Tariff Item 15A(1) while so far as silicone emulsion and other silicone preparations are concerned as they are made by using silicone oil or other components of silicone they would not be covered by Tariff Item 15A(1) but would be covered by Tariff Item 15AA. But in no case they would be covered by Tariff Item 68 which is a residuary Item. The judgment and order of the Tribunal as challenged by the said appellants will stand modified accordingly by holding that silicone oil simplicitor manufactured by the appellants would be liable to be taxed under Tariff Item 15A(1) while silicone oil emulsions and other preparations containing silicone manufactured by the appellant will be cover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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