Chapter 39 pre-polymer classification needs disclosed test basis, fresh sampling, and cross-examination before final determination.

Classification of products as pre-polymers under Chapter 39 was found unsustainable where the chemical test report did not disclose the basis for invoking Note 3(e) and the appellant's request to cross-examine the chemical examiner had not been allowed. In these circumstances, the existing material was treated as insufficient for a final classification determination, and fresh sampling and re-testing were required before deciding the tariff position. Cross-examination of the chemical examiner was to be permitted if sought, ensuring a proper evidentiary basis for re-adjudication.

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Issues: Whether the classification of the products under Chapter 39 as pre-polymers was sustainable and whether the matter required remand for fresh sampling, testing, and opportunity of cross-examination.

Analysis: The classification accepted by the lower appellate authority rested on a test report that did not disclose the basis for treating the products as falling under Note 3(e) of Chapter 39 as pre-polymers. The record also showed that the request for cross-examination of the chemical examiner had not been granted. In these circumstances, and since the products were stated to continue in manufacture, the existing material was found insufficient for a final classification decision. The proper course was to draw fresh samples, conduct fresh testing, and permit cross-examination of the chemical examiner if sought by the appellant.

Conclusion: The classification orders were not sustained and the matter was remanded for fresh decision after fresh sampling and testing, with cross-examination to be allowed if required.

Ratio Decidendi: Where the basis of a chemical classification report is not disclosed and cross-examination of the expert is denied, a fresh adjudication after re-sampling and re-testing is warranted before final classification is determined.

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