Judgment

SABYASACHI MUKHARJI, J.:- In this appeal under S. 35L of the Central Excises and Salt Act, 1944 (hereinafter called the Act), the question involved is whether "Decoplast" manufactured by the Asian Paints India Ltd., the appellant herein, is plastic emulsion paint and, therefore, classifiable under Tariff Item 14(I)(3)(iv) of the First Schedule of the Act as plastic emulsion paint or it should be classifiable under Tariff Item No. 14(I)(5) that is as "paints not otherwise specified."

2. The Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter called the CEGAT), by the impugned Order challenged in this appeal held that Decoplast is plastic emulsion paint. The appellant felt aggrieved thereby. In so holding the Technical Member of the Tribunal observed that in view of its composition, characteristics and uses, Decoplast should be considered as emulsion paint. The Judicial Member of the Tribunal was of the view that the Revenue had not adduced any evidence of rebuttal of the evidence adduced by the appellant as the commercial understanding but the evidence adduced by the appellant was intrinsically untrustworthy. Therefore, in spite of the affidavits and absence of evidence in rebuttal, he agreed with the other member that Decoplast is plastic emulsion paint and the appeal before the Tribunal should be dismissed.

3. It appears that the appellants had filed revision application before the Government of India against the Order of the Revenue authorities. Ultimately, the same was rejected by the Government of India. It is not necessary to set out in detail all the events. The appellant had moved the High Court of Bombay against the Order of the Government of India and the High Court by its Order directed as follows :-

"The order dated 17th December, 1979 passed by the Govt. of India in revision in the Petitioners case is set aside inasmuch as the Revision Authorities have not controverted or rebutted the evidence in the form of affidavits relied on by the Petitioners to show that their product could not be regarded as a plastic emulsion paint amongst persons dealing in such products. The Revision Order thus failed to follow the well established rule of interpreting entries in the Excise Tariff namely to classify products by their common parlance and trade understanding and not by their scientific or technical meaning. It is necessary that the matter be remanded to the Revision Authorities to decide the same afresh according to law. However, as the Revision Authority under the demanded (Sic) Central Excises and Salt Act has been replaced by the Customs, Excise and Gold (Control) Appellate Tribunal, the said Tribunal is directed to hear the Petitioners Revision Petition and to determine the same as an appeal before it. The Tribunal shall give an opportunity to both the petitioners and the Excise Authorities to rely on any evidence and material either on record or otherwise which they may lead or produce in support of their case. The parties will be given full opportunity of affidavits if any during the hearing."

4. In pursuance to the said Order, the matter came before the Tribunal. Before the Tribunal it was contended on behalf of the appellant that the manufacture was water thinnable paint but the same could not be held to be plastic emulsion paint for the product was not known in the trade as plastic emulsion paint nor was it bought and sold so. According to the appellant, the paint essentially comprised of pigment and a binder or a vehicle and that while the binder and the vehicle were interchangeable, it was stated that the binder generally referred to solid part which in this case was synthetic resin and the solvent could be water or some other diluent. There was elaborate evidence adduced before the Tribunal on behalf of the appellant. Reference was made to the specifications of plastic emulsion paint as given by ISI. It was contended on behalf of the appellant that Decoplast could not be considered as plastic