2000 (8) TMI 637 - AT - Central Excise

Tribunal reclassifies Bituminous mixtures under heading 27.15, overturning Revenue's contention

SHALIMAR PAINTS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, CALCUTTA

The Tribunal ruled in favor of the appellant, classifying all 30 items of Bituminous mixtures under heading 27.15 instead of heading 32.10 as contended by ... Classification of goods - Bituminous mixture - Issues Involved:1. Correct classification of Bituminous mixtures (Cut-back Bitumen).2. Validity and applicability of test reports for classification.3. Relevance of previous tariff classifications under the new tariff structure.4. Evidentiary value of the CRCL test report.Summary:1. Correct Classification of Bituminous Mixtures:The appellant claimed classification of Bituminous mixtures under heading 27.15, while the Revenue contended for heading 32.10. The Tribunal agreed with the appellant, noting that the new tariff structure specifically mentions Bituminous mixtures under heading 27.15, and there is no mention of the same under heading 32.10. The Tribunal emphasized that there is no estoppel in law, allowing the appellant to claim a change in classification based on the new tariff structure.2. Validity and Applicability of Test Reports:The appellant argued that test reports were available for only 4 out of 30 products, and there was no material against the remaining 26 products. The Tribunal agreed, citing the decision in S.D. Kemexc Indus. v. CCE, which held that test reports can only be applied to the products for which samples were drawn. Thus, the 26 products without test reports were classified under heading 27.15 based on the appellant's declarations and technical literature.3. Relevance of Previous Tariff Classifications:The Tribunal noted that under the previous tariff, Bituminous mixtures were classified under items related to paints and varnishes. However, with the change in the tariff structure w.e.f. 28-2-1986, Bituminous mixtures came to be specifically mentioned under heading 27.15. The Tribunal held that the classification under the new tariff should be made in light of interpretative rules, chapter notes, and section notes, with guidance from explanatory notes in the Harmonised commodity description and coding system.4. Evidentiary Value of the CRCL Test Report:The Tribunal found the CRCL test report unreliable due to the long delay in testing and the introduction of new constituents (epoxy resin) not mentioned in the initial report or the show cause notice. The Tribunal agreed with the appellant that the CRCL report lacked evidentiary value, especially when it contradicted the earlier report and the appellant's production records. Consequently, the Tribunal disregarded the CRCL report and classified all 30 items under heading 27.15.Conclusion:The Tribunal set aside the impugned order and allowed the appeal, classifying all 30 items manufactured by the appellant under heading 27.15.