TaxTMI 
TaxTMI 
2024 (4) TMI 1010
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....um Authorized Signatory of Second appellant. 2. Learned Counsel for the appellant pointed out that appellant- 1 and appellant-2 were engaged in import of Duty Free Inputs and were also clearing the manufactured product in DTA in accordance with para 6.8 (H) of Foreign Trade Policy 2009-2014 on payment of duty under Section 3 of Central Excise Act, 1944 at full rate under the provision of Notification No. 23/2003-CE dated 01.03.2003. It was noticed that the appellant had manufactured and clearance recycled agglomerated plastic declaring classifiable under Chapter sub-heading 39159029 during the year-2007- 2008, 2008-2009, 2009-2010, 2010-2011 and 2011-2012 (up to September-2011) on payment of Central Excise Duty calculated according to prov....
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.... imposed on third appellant by the original adjudicating authority but the same was reduced to Rs. 3,20,000/- by first appellate authority. 2.1 Learned Counsel pointed out that due to mistake on account of their executives the product "agglomerate plastic granules" were classified under Tariff Heading 39159029 till September-2011. However, the said mistake was corrected and goods were classified under 39019090 after September- 2011. Only after this change was made that the first show cause notice dated 19.06.2012 was issued by the revenue. Learned counsel pointed out that earlier during 2007-2008 and 2008-2009, the Central Excise Revenue Audit had identified short payment of Education Cess and SHE Cess on the said goods. The said different....
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....Counsel pointed out that the appellant had imported plastic waste and scrap subject to actual user condition. Para 3 of the Public Notice No. 392 (PN) 92-97 dated 01.01.1997 clarifies that the parameters prescribed therein would apply Mutatis Mutandis in case of import of plastic waste and scrape by 100% EOU's. 2.4 Learned Counsel further argued that the learned Commissioner (Appeals) erred in holding that the heading 3901 applies only to goods produced by chemical synthesis. Learned Counsel pointed out that the contention of Commissioner (Appeals) is not acceptable for the reason that the Chapter Note-3 applies only to sub category (a to e) prescribed in said Chapter Note-3 to Chapter 39. He argued that the said Chapter Note is not applic....
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....ed of thermoplastic polyethylene having specific gravity below 0.6, size 1 mm to 15 mm". 3.2 Another report of the Chemical Examiner dated 09.03.2012 reads as follow: "The sample is in form of pink coloured lumps and irregular size and shape (primary form) Composed of single thermoplastic polyethylene (pigment) size 2 mm to 20 mm". 3.3 Another report dated 07.03.2004 reads as follow: "The sample is in form of gray colour small lumps, irregular size in shape (primary form). It is composed of single thermoplastic polyethylene (pigmented) size 2 mm to 15 mm". 4. Learned Counsel pointed out that from the above report , it can be seen that even chemical examiner has stated that the goods are in primary form and composed of single therm....
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....thermoplastic material transform into primary form and for such material the appropriate heading is 3901 to 3914. A perusal note would indicate that the terms primary form applies to lumps, powder and granules. The chemical examiners report clearly holds that the goods are single thermoplastic material and are in form of lumps, powder granules etc. The chemical examiner further holds that the goods are in primary form. In these circumstances, the attempts to sustained classification of goods under heading 3915 cannot be upheld. In terms of Notes 6 and 7 and in terms of the chemical examiner report, it is apparent that the goods are not classifiable under heading 3915 being of single thermoplastic material in primary form. 7. The revenue in....