Articles of materials described in sub Item 1 , Fifty percent the following, namely ad valorem Boards, sheeting, sheets and films, whether lacquered metalised or laminated or number flat tubings number companytaining any textile material.
V/68/17/49/84 dated 22.2.85 refused to draw a fresh sample for retesl.
The sample lying with the companypany only was sent for the purpose of retcst to the Chief Chemist, CRCL, New Delhi.
The test results were received in Chemical Examiners report dated 31.5.83 which revealed that the sample is a sodium salt of carboxymethyl cellulose and was a cellulose ether.
The following artificial or synthetic resins and plastic materialsnamely, clearly indicates that only those materials which were mentioned in clauses i , ii and iii were to be taxed under Tariff Item 15A 1 .
In this respect, the companypany was specifically asked whether they would like to send the duplicate sample for retest and accordingly the sample was sent for re test with the companycur rence of the companypany.
On further appeal Tribunal upheld the order passed by the Assistant Collector.
After the amendment made by the Finance Act, 1982, the opening sentence of sub item 1 of Tariff Item 15A, viz.
Prior to 1.3.82 tariff item 15A stood as under 15A. ARTIFICIAL OR SYNTHETIC RESINS AND PLASTIC MATERIALS AND CELLULOSE ESTERS AND ETHERS, AND ARTICLES THEREOF The following artificial or synthetic resins and plastic materials, and cellulose esters and ethers in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders, namely XXXXXXXX X 2 x x x x x x x Polyurethane foam.
The argument of the appellant is that prior to 1.3.82, the main heading of the Tariff Item 15A included cellulose esters and ethers alongwith artificial or synthetic resins and plastic materials.
Thus it may be seen that enough oppor tunities were given to the companypany for vindicating their stand in the matter.
The companypany in their letter RCP CE/15A/6901 dated 22.9.83 also companyfirmed having sent samples to National Test House, Alipore but never mentioned about the test results to the department.
RCPL were number satisfied with the test report.
On receipt of this unfavourable test results from the chemical examiner the companypany stated that they are number agreeable to this test report and wanted that more elaborate tests as suggested by them should be carried out to ascertain more detailed companyposition of the sample as the test report of the Chemical Examiner, Madras was incomplete.
It is a sodium salt of carboxymethyl cellulosea cellulose ether.
When this result of the re test was companymunicated to RCPL, they requested for drawal of a fresh sample and sending it for a fresh test, on two grounds re test was done after more than a year from the date of drawal of sample because the Chief Chemists report did number mention anything about the issue raised by the Superintendent of Central Excise in his Test Memo dated 8.4.83, viz the sample has to be tested for Regenerated Cellulose Cellulose Nitrate, Cellulose acetate and other Cellulose Ethers, Cellulose Ethers and other chemical derivatives of cellulose, plasticised or number.
Their product Sodium Carboxymethyl Cellulose was described as Car boxymethyl Cellulose and classified under Tariff Item 68.
Polyurethane foam.
191/85 H dated 2.5.86, allowed the appeal and directed the Assistant Collector to hear the case de numbero.
In the said order in original the Assistant Collector recorded the following reasons for number drawing a fresh sample for re test by the Chief Chemist The sample of their product was initially drawn on 8.4.83 and was sent to the Chemical Examiner, Madras in the Prescribed test memo.
The presence of sodium in the product does number affect its classification as cellulose ether.
The appellant company preferred an appeal against the order of the Assistant Collector.
Presumably the test results were number in their favour.
It means that the clear intention of the legislature was to exclude cellulose esters and ethers from Tariff Item 15A 1 .
The companypany also gave a declaration that the sample which they requested for retest is sodium carboxymethyl cellulose manufactured in their factory which was furnished as an enclosure to their letter No.
They requested for re test of the sample by the Chief Chemist, CRCL, New Delhi.
We were referred lo a number of test reports obtained by the appellant from various persons and on the basis of these opinions, the reports of the Departmental Chemical Examiner and also the Chief Chemist were assailed.
They also companytended that the earlier test reports of Chemi cal Examiner and Chief Chemist were number companyrect, and that CMC was number ether and number classifiable under Tariff Item 15A 1 .
Thereafter, the Assistant Collector of Central Excise, Hyderabad I Division issued a show cause numberice No.
Cellulose ether and esters do number figure in any of these three clauses.
The appellant Company filed a classification list on 18.6.82.
A sample of the product was tested by the Departmental Chemical Examiner, who reported the test result as follows The sample is in the form of a pale brown powder.
In their reply dated 9.9.86 to the show cause numberice, RCPL chal lenged the show cause numberice stating that it companyld number be issued without first deciding the issue regarding drawal of fresh sample and sending it to Chief Chemist.
These orders arc number under challenge before this Court.
During the personal hearing before the Assistant Collector on 11.9.86, their companynsel renewed the request for test of a fresh sample by Chief Chemist and requested for facility of cross examination of Chemical Examiner and Chief Chemist on the next date of hearing.
Against the said order, RCPL filed an appeal before Collector Appeals , Madras, who by his order in appcal No.
The Assistant Collector of Central Excise, vide his letter No.
Assistant Collector passed his order in original dated 14.10.86 classifying CMC under Tariff Item 15A 1 and directing RCPL to pay differential duty from 28.2.82 to 27.2.86 without giving further hearing.
RCP CE/6642/82 83 dated 13.9.83.
The duplicate sample lying with RCPL was sent for re test by the Chief Chemist with their companycurrence.
Hence this plea of the companypany cannot be accepted.
1997 Supp 1 SCR 485 The Judgment of the Court was delivered by SEN, J. M s Reliance Cellulose Products Limited, the appellant company manufactures Sodium Carboxymethyl Cellulose hereinafter referred to as SCMC .
The Assistant Collector was right in number relying upon the other test results produced by the appellant company.
Sub Item 1 of Tariff Item 15A listed the various materials under three clauses i , ii and iii which were to be subjected to central excise duty.
This argument is without any substance because under the amended tariff item 15A under clause i , various items which have to be taxed under item 15A have been enumerated and other cellulose esters, cellulose ethers and other chemical derivatives of cellulose plasticised or number for example, companylodions, celluloid have been specifically included.
The Classifica tion list was approved provisionally and the assessments were made provisionally under Rule 9 B of the Central Excise Rules from 1.3.82.
Tariff item 15A at the material time stood as under ARTIFICIAL OR SYNTHETIC RESINS AND PLASTIC MATERIALS AND OTHER MATERIALS AND ARTICLES SPECIFIED BELOW Condensation, polycondensation and fifty percent polyaddition products, whether or number modified or ad valorem polymerised, and whether or number linear for example, pheno plasts, amino plasts, alkyds, polyallyl esters and other unsaturated polyesters, silicones polymerisation and company polymerisation products for example, polyethylene, polytetrahaloethylenes, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloro acetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, companymaroneindene resins regenerated cellulose cellulose nitrate, cellulose acetate and other cellulose esters, cellulose ethers and other chemical derivatives of cellulose, plasticised or number for example, companylodions, celluloid vulcanised fibre hardened gelatin natural resins modified by fusion run gums artificial resins obtained by esterification of natural resins or of resinic acids ester gums chemical derivatives of natural rubber for example, chlorinated rubber, rubber hydrochloride, oxidised rubber, cyclised rubber other high polymers, artificial resins and artificial plastic materials, including alginic acid, its salts and esters linoxyn.
Seventy five percent ad valorem Articles made of polyurethane Seventy five percent ad valorem.
Acceptance of such a request of the companypany would defeat the purpose inasmuch as the samples intended to be sent for test may be so arranged to get favourable results also.
The Collector of Central Excise Appeals , Madras upheld the order of the Assistant Collector and held that the tests have been made repeatedly by proper authority under Rule 56 of Central Excise Rules.
The companytention of the appellant company is that the product manufactured by them is classifiable under Item 68 of the Central Excise Tariff Act.
The companypany also raised the issue that the test results given by the Chief Chemist, CRCL, Delhi is number acceptable to them on the ground that the sample is old The companypany did number show any evidence on record or otherwise that the companyposition of sample gets affected due to age.
Samples cannot be sent time and again at the will and pleasure of the companypany.
Articles made of polyurethane foam.
