TaxTMI 
TaxTMI 
2022 (9) TMI 1561
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Portugal vide invoice No. 120068 dt. 23.01.2012. The declared weight was 17700 kgs and declared assessable value of the goods was Rs. 1,63,9671 (Rupees One Lakh Sixty Three Thousand Nine Hundred and Sixty Seven Only). Importer claimed BCD benefit under Notification 021/2002 Sr. no. 480 which is available to "Polymers of Vinyl Chloride". 2.2 Assessing officer was of the view that the item under import was "PVC compound T2 & not the polymers of vinyl chloride. Therefore appellant was asked to justify their claim for exemption. Appellant explained that item under import is PVC compound & is a mixture of ingredients like resin, plasticizer, filler etc. and also submitted that they didn't have any facility to Manufacture PVC Compound & therefore, they were not importing PVC resin. 2.3 After consideration of submissions assessing officer decided the issue of exemption as per the order as follows: "ORDER In view of the above, I hereby deny the BCD exemption under notification no. 21/02-Sr. No. 480 claimed by importer & instead extend the benefit of Sr. no. 559 of Notification No. 21/2002-Cus for the goods imported under Bill of Entry No. 6170246 date 05.03.20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evant portion of the HSN explanatory note is extracted below: • Liquid and Pastes: These may be the basic polymer which requires "curing" by heat or otherwise to form the finished material or may be dispersions (emulsions and suspensions) or solutions of the uncured or partly cured material. In addition to substances necessary for "curing" (such as hardeners (cross-linking agents) or other co reactants and accelerators), these liquids or pastes may contain other materials such as plasticizers, stabilizers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other desirable characteristics. The liquids and pastes are used for casting, extrusion, etc., and also impregnating materials, surface coatings, bases for vanishes and paints, or as glues, thickeners, occulants, etc. • Powder granules and flakes: In these forms they are employed for moulding, for the manufacture of varnishes, glues, etc. and as thickeners, flocculants, etc. They may consist of the unplasticized materials which become plastic in the mo process, or of the materials to which plasticizers have been added; these materials inay incorpor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts right to do so but the Appellant has failed to produce any document which conclusively prove that the impugned goods were Polymers of Vinyl Chloride. • I have enclosed a sample Material Data Sheet for PVC Compound of a random company available in the internet for reference purpose only. This is to show Your Lordships as to how much technical detail the Material Data Sheet should contain. Such a Material Data Sheet or an Expert opinion would have helped the Department or the Hon'ble Tribunal to arrive at an informed conclusion. But the Material Data Sheet submitted by the Appellant contains nothing more than the chemical composition of impugned goods.. • CITATION- HSN EXPLANATORY NOTES o (A) Chemically defined compounds (Chapter Note 1) A separate chemically defined compound is a substance which consists of one molecular species (e.g., covalent or ionic) whose composition is defined by a constant ratio of elements and can be represented by a definitive structural diagram. In a crystal lattice, the molecular species corresponds to the repeating unit cell. Separate chemically defined compounds containing other substances deliberately ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to name a few. o Making PVC resin and vinyl compounds are very technical, scientific and labor-intensive processes. There are several industries, and a large and varied job sector, that play a supporting role in providing manufacturers all over the world with the compounds they need, which enables them to make the products we all use every day. • Omnexus o Basic Forms of PVC Polyvinyl Chloride is widely available in two broad categories: Flexible and Rigid. But, there are more types like CPVC, PVC-O and PVC-M. • Plasticized or Flexible PVC (Density: 1.1-1.35 g/cm"): Flexible PVC is formed by the addition of compatible plasticizers to PVC which lower the crystallinity. These plasticizers act like lubricants resulting in a much clearer and flexible plastic. This type of PVC is sometimes called as PVC-P. • Unplasticized or Rigid PVC (Density: 1.3-1.45 g/cm): It is a stiff and cost-effective plastic with high resistance to impact, water, weather, chemicals and corrosive environments. This type of PVC is also known as UPVC, PVC-U or PVC. • Chlorinated Polyvinyl Chloride or perchlorovinyl: It is prepared by c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ers of Vinyl Chloride). Answer to this question can be had from Sub heading Note 1(a) which read as under: "The designation in a subheading of a polymer by the prefix 'poly' means that the constituent monomer unit or monomer units of the named polymer taken together must contribute 95% or more by weight of the total polymer content. In the instant case the % age as claimed by the appellant himself is just 63%. Therefore, it is beyond the scope of Sr. No. 480 Further, Sr. No. 559 to the Notification 21/2002 which allows concessional rate of 7.5% BCD read as under: Sr. No. CTH Description of the goods 559 3901 to 3915(except 3908) All goods Comparison of both the serial numbers clearly indicate that the goods classifiable at CTH-3904 may fall under Sr. No. 480 provided the total polymer counts are 95% or more by weight and rest of the product having polymer contents less than 95% are covered under Sr. No. 559. 5.7 In view of the above discussion I conclude that notification benefit under Sr. No (480) of notification 21/2002 is not available to impugned goods and has rightly be denied." 4.3 Admittedly in the present....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly vinyl chloride as that is the single dash entry preceding the CTH in which the classification has been held. Having held, so revenue cannot for deciding the claim to exemption, hold a contrary view. The exemption at Sl 480, is admissible to all poly vinyl chlorides classifiable under heading 3904. 4.5 Similar view was taken by the tribunal in the case of Ajay International Corporation Ltd. [205 (323) ELT 385 (T-Mum)] in following words: "From the above tariff description, it can be seen that the said Heading 3904 covers, not only PVC not mixed with any other substance but also PVC mixed with other substances. It also contains compounds of PVC and copolymers of PVC such as, vinyl chloride-vinyl acetate copolymers, vinylidene chloride polymers, fluro polymers. Thus, all forms of PVC merit classification under Heading 3904. It is also provided in subheading note 1(b) that chemically modified polymers should be classified under sub-heading appropriate to the unmodified polymers. As per Note 6, primary forms has been defined to include liquids and pastes, including dispersions and solutions and blocks of irregular shape, lumps, powders (including moulding powders), granul....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 480 and this Tribunal held that the said entry would cover all forms of poly vinyl chloride and accordingly, the benefit would be available. 6. In the light of the foregoing discussions, we are of the considered view that the chlorinated PVC merits classification under CTH 3904 and is eligible for the concessional rate of duty of 5% BCD in Sr. No. 480 of Notification No. 21/2002. Thus, the appeal is allowed with consequential relief, if any." 4.6 In the case of Henkel Teroson India Ltd [2012 (278) 499 9T-Mum)], Mumbai bench observed: "3. On a perusal of the Tariff entry, we find that CTH 3904 covers "Polymers of vinyl chloride or of other halogenated olefins, in primary forms" and sub-heading 3904 30 covers "Vinyl chloride-vinyl acetate copolymers". Chapter Note 4 explains the expression "copolymer" thus - "the expression 'copolymer' covers all polymers in which no single monomer unit contributes 95% or more by weight to the total polymer content." As vinyl chloride and vinyl acetate monomer contents in the imported goods are 93% and 7% respectively, the polymer qualifies to be a "copolymer" and consequently the goods should remain classified under sub-heading....