TaxTMI 
TaxTMI 
2025 (7) TMI 1832
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.... "the item is not in compound form and also not mixed with any other substances like Plasticizers". Further at para 13 the report was further quoted as stating that "the sample may be considered as polyvinyl Chloride (PVC) resin, which is a single thermoplastic material in powder form, it may be considered as prime material and it may not be considered as compound since it is not mixed with any other substances". Based on the Test Report, the Ld. Original Authority, after granting a personal hearing, opined that the imported grade of PVS Resins needs to be reclassified under CTH 3904 1090. He denied the benefit of Notification No. 46/2011-Cus dated 1.6.2011 and demanded duty of Rs.22,38,097/- along with interest. The appellant preferred an appeal before the Commissioner (Appeals) who vide the impugned order upheld the reclassification and rejected the appeal. Hence the present appeal. 3. The learned Advocate Shri Hari Radhakrishnan appeared for the appellant and Smt. Rajni Menon, Ld. Authorized Representative appeared for the respondent.. 3.1 The Ld. Counsel for the appellant submitted that the test report dated 25.11.2014 given by CIPET was in favour of the appellant and it stat....
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....ection and chapter notes, and the General Rules for the Interpretation of the First Schedule to the Customs Tariff Act, 1975 (GRI). Rule 1 of the GRI provides that the classification of goods shall be determined according to the terms of the headings of the tariff and any relative Section notes or Chapter notes. If the goods cannot be classified solely on the basis of GRI 1, Rules 2 to 6 provide further classification guidance in sequential order. Rule 3(a) of GRI also provides that the heading which provides the more specific description shall be preferred to headings providing a more general description. Hence if the goods to be classified are covered by the description in a heading and the Section and Chapter Notes do not exclude classification in that heading, the heading applies. 5.1 Hence a commodity cannot be classified in a residuary entry, in the presence of a specific entry, even if such specific entry requires the product to be understood in the technical sense [see Akbar Badrudin Vs Collector of Customs, 1990 (2) SCC 203 / 1990 (47) E.L.T. 161 (S.C.); Commissioner of Customs Vs G.C. Jain, 2011 (12) SCC 713 / 2011 (269) E.L.T. 307 (S.C.)]. 5.2 The relevant portion of....
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.... since it is not mixed with any other substance like plasticizer or non-plasticizer and is rightly classifiable under sub-heading 390410 only. In view of the above discussion and findings, I pass the following order." 8. When the matter was taken up before the Ld. Commissioner Appeals, his earlier order dated 19.01.2015 in the case of M/s Lila Polymers (supra) pertaining to the import of 'PVC Resin Suspension Grade SP660' was brought to his notice, where in it was stated; The appellants have filed the self-assessed bills of entry classifying the goods under CTH 39042110. Whereas the department has changed the classification to CTH 39041090 in the reassessment. Sample was drawn from the consignment and sent to CIPET for test. The Test report has stated as follows: Based on the above test results and visual appearance, the submitted samples may be considered as Poly Vinyl Chloride (PVC) which is single thermoplastic material in powder form. The submitted sample may be considered as prime material, and it is not containing any other substances like plasticizer. From the above it can be seen that the test report states that the sample does not contain any other substance like p....
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....ingle dash six-digit level heading indicates that CTH 39041090 covers Poly (vinyl chloride), not mixed with any other substance, that are other than binders for pigments. The test report has stated that the PVC does not contain any other substance like plasticizers which means that the presence of any substances other than plasticizers along with PVC is not ruled out. Therefore, the classification at the 6-digit level itself i.e. CTH 3904 00 gets ruled level i.e. 39041090 in which the department has classified the impugned goods is found not relevant to the Impugned goods. Notwithstanding the above, on a comparison with eight digit and triple dash level between CTH 39041090 and CPH 39042110 shows that CTH 39042110 is the most appropriate for the impugned goods namely PVC resins without plasticizers. When an entry at eight digit level covers the goods specifically then it should be taken as the most appropriate heading. Further the CTH chosen by the department i.e. CTH 39041090 is a residual entry. Whereas the CTH 39042110 is specific. Rule 3 (a) of the General Rules for the Interpretation of Import Tariff has laid down that "the heading which provides the most specific descriptio....
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....tance like plasticizer and that it did not state that the sample does not contain any other substance altogether. whereas in the present case, the Test Report and the clarification have stated that the sample may be considered as a prime material and that it may not be considered as compound since it is not mixed with any other substance. Thus the facts of the case are different." (emphasis added) He went on to render the following findings; "The appellants have imported PVC Resin. Sample was drawn from consignments covered by one of the bills of entry referred in the impugned order in original and sent to CIPET for testing. The Test report in the column "Comments has stated as follows:: "the sample may be considered as polyvinyl chloride (pvc) resin, which is a single thermoplastic material in powder form, it may be considered as prime material and it may not be considered as compound since it is not mixed with any other substances"." It could be seen that the test report has stated that the sample may be considered as a prime material and cannot be considered as a compound as it is not mixed with any other substance. The testing Lab has given clarification which is as foll....
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....lso stated by the Hon'ble Supreme Court in several judgments, some referred to above, has also been stated by the Commissioner Appeals himself in his order dated 19.01.2015 in the case of M/s Lila Polymers (supra). However, in the appellant case the goods 'PVC resin grade SP660' imported by them was differentiated from the 'PVC Resin Suspension Grade SP660' imported by M/s Lila Polymers in the impugned order. 10. We find that the Ld. Commissioner Appeals in M/s Lila Polymers (supra), had classified the goods under CTH 39042110 on two grounds; (i) The test report states that the submitted sample may be considered as prime material, and it is not containing any other substances like plasticizer. (ii) Notwithstanding the above position, he went on to hold that, on a comparison with eight digit and triple dash level between CTH 39041090 and CPH 39042110 shows that CTH 39042110 is the most appropriate for the impugned goods namely PVC resins without plasticizers. 10.1 We find that in the case of the appellant's case too no plasticizer was found, as per the test report. It stated that the submitted sample may be considered as prime material and it may not be considered as compoun....
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....st reports and the law in M/s Lila Polymers (supra) and should not have allowed a change in semantics to have altered his opinion so drastically and to speak in two voices on the same issue. 12. We are hence of the opinion that the impugned order merits to be set aside and the appropriate Customs tariff heading for the impugned goods held to be 39042110. 13. We are fortified in our views by the order of a coordinate Bench of this Tribunal at Kolkata in the case of M/s Surabhi Enterprises (supra) cited by revenue. In that case the only dispute as stated by revenue was that the imported goods being 'uncompounded or pure PVC Resin' are classifiable under Tariff Item 3904 10 90 within sub-Heading 3904.00, which covers 'Poly (vinyl chloride), not mixed with any other substances', whereas, the Appellants have classified the goods under Tariff Item 3904 21 10 which covers 'Poly (vinyl chloride) resins', within sub-heading 3904.21 which covers 'other poly (vinyl chloride) non-plasticised'. However, this change in CTH pertained to the period after 31.03.2017 when 'Poly (vinyl chloride) resin' falling under the heading 3904 2110 was deleted and shifted to 3904 10, as per the Finance Act,....