TaxTMI 
TaxTMI 
2024 (4) TMI 1010
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....3/2003-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 provisions prescribed under Notification No. 23/2003-CE dated 01.03.2003. It was noticed that while calculating aggregate duty both these appellant had taken basic Customs Duty at the rate of 5% ad valorem in terms of Notification No.. 21/2002-Cus., dated 01.03.2002 as amended vide Notification No. 11/2006 dated 01.03.2006. According to the said notification, the exemption of duty was available to the product of Chapter Heading 3901 to 3904 (Serial No. 477 to 480 of notification). Revenue was of the opinion that the goods manufactured by both these appellants, i.e. recycled agglomerated plastic and plastic grinding, were classifiable under Heading 39159029 and therefore the concessional rate of 5% under Notification No. 21/2002-Cus., dated 01.03.2022 was not available to the appellant. The revenue was of the opinion that the goods of Chapter sub headin....
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....ition only and would be permitted only to actual users who had the required facility for recycling such waste/scrap. Therefore, for others import of plastic waste/scrap is prohibited fro clearance as such. After recycling, it gets transformed into primary form of plastic agglomerat (re- processed granules), which is being manufactured by the two appellants. The said goods cannot be classified under same heading as that of raw material i.e. plastic waste/scrap under heading 39159029. Learned 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....
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....ned order. 6. We have considered the rival submissions. We find that the issue before us is if the product imported by the appellant can be considered goods classifiable as polymers of ethylene in primary form under heading 3901 or the same have to be classified as waste, paring and scrap of plastic falling under heading 39159029. It is noticed that while samples were drawn but the reports obtained from chemical examiner have not been relied in the current proceedings. The appellant has obtained the aforesaid test reports by under RTI. The learned counsel for the appellant has relied on the test reports which are reproduced above, to assert that the goods consist of single thermoplastic material and the chemical examiner grade-I has categorically that the goods are in primary form. Note 6 and 7 of the Chapter 39 reads as under: "6. In headings 3901 to 3914, the expression "primary forms" applies only to the following forms : (a) Liquids and pastes, including dispersions (emulsions and suspensions) and solutions; (b) Blocks of irregular shape, lumps, powders (including moulding powders), granules, flakes and similar bulk forms. 7. Heading 39.15....
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....nt case, the Chemical Examiner Reports have clearly indicated that the material is polyethylene and it is in primary form. 8. In this instance case, the goods being polyethylene are classifiable under heading 3901. In this background, we do not find any merit in the impugned order and the same is set aside and appeals are allowed. ( Pronounced in the open on 24. 04. 2024 ) ============= Document 1 Primary forms Headings 39.01 to 39 14 cover goods in primary forms only. The expression "primary forms" is defined in Note 6 to this Chapter. It applies only to the following forms: (1) Liquids 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 materials. 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 plasticisers, stabilisers, fillers and colouring matter, chiefly intended to give the finished products special physical properties or other des....