TaxTMI 
TaxTMI 
1997 (11) TMI 192
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....ariff headings are reproduced below for convenience of reference :- Tariff Heading 3907.50 - Alkyd resins including maleic resins and fumeric resins Tariff Heading 3907.91 - Other Polysters Unsaturated 4. The Chapter Notes 5 & 14 of Chapter 39 are also reproduced below for convenience of reference as under :- "5. Chemically modified polymers, that is those in which only appendages to the main polymer chain have been changed by chemical reaction, are to be classified in the heading appropriate to the unmodified polymer. This provision does not apply to graft copolymers. 14. Within any one heading of this Chapter, copolymers (including co-polycondensates, co-polyaddition products, block copolymers and graft copolymers) are to be classified in the same sub-heading as homopolymers of the predominant comonomer, and chemically modified polymers of the kind specified in Note 5 above are to be classified in the same sub-heading as the unmodified polymer, provided that such copolymers or chemically modified polymers are not more specifically covered by any other sub-heading concerned. Polymer blends are to be classified in the sa....
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....r note 14 differently and has observed as under in Paras 6 & 7 of his order :- "6. Secondly, the second condition of Chapter Note 14 simply says that there should not be any sub-heading under the series of sub-headings named `others'. But when we look at the Heading 3907 we find that it contains a sub-heading `other polysters' which is further sub divided into unsaturated (3907.91) and other (3907.99). Thus the sub-classification 3907.91 becomes relevant only when one wants to classify `other polysters' and not when one considers classification of maleic resins. Surely, the word `other' used in Chapter Note 14 is different from "other polysters" used under Chapter Heading 39.07. 7. Thirdly, the Assistant Commissioner's contention that the chemically modified polymers fall under 3907.91 is not in confirmity with what the HSN has to say on the subject of classification of modified polymers. At page 556 of HSN Explanatory Notes it is classified (para 2 to c) I quote "Chemically modified polyethers (other than polyacetals) are to be classified in sub-heading 3907.20 because there is neither a more specific sub-heading nor a residual sub-heading `other' to cover them". A....
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....msp;The assessee claimed the product chemically modified maleic resin as unsaturated polyesters falling under 3907.91 during the year 1991-92 vide R. Cl. No. 13/91, dated 26-7-1991. In view of the above read with Chemical examiners report the product merits classification under 3907.91. 8. The ld. SDR for the department has reiterated the grounds of appeal. He has pleaded that going by the reading of the Chapter Notes 5 & 14 together only conclusion that follows is that the goods will be classifiable under Tariff Heading 3907.91. 9. The ld. Advocate for the respondents referred us to the Assistant Commissioner's order and pointed out that the respondents' goods were originally assessed provisionally and have paid the duty "under protest" under the Tariff Heading 3907. He has pleaded that the similar product of the respondents was earlier the subject matter of dispute regarding classification and benefit of another notification and the Tribunal in their decision reported in 1991 (56) E.L.T. 685 has clearly held that the appellants' goods namely Hylack Polyester Resins were modified Maleic Resins. He has pleaded that in terms of Chapter Note 5, the modified Maleic ....
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....es specified in Chapter Note 5 and this note envisages that these are to be classified under the same heading as the unmodified polymers provided that these are not specifically covered by any other sub-heading and that there is no residual sub-heading named "Other" in the series of sub-headings concerned. 13. So far as the first condition is concerned, the ld. Original authority has also entered a finding that there is no heading specifically covered the respondents' goods. However, he has held that under Tariff Heading 3907, there is a Heading 3907.91 - "other polyesters" in the category of "others" as set out under Chapter Note 14. We observe what has to be seen is, as held by the ld. lower appellate authority, whether in terms of Note 14 i.e. in the series of sub-heading, there is a category of "others" mentioned. What it implies is that if under a particular tariff heading, there are sub-headings and if after the series of the sub-heading there is a heading "others", then the goods would get classified under that heading. We have to therefore examine the scheme of 3907. After the main description under Tariff Heading 39.07, we have Tariff Heading 3907.10 which covers P....