Judgment

SABYASACHI MUKHARJ1, J. :- These appeals under Section 130E(b) of the Customs Act, 1962 (hereinafter called the Act) are against the order dated 15th December, 1986 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter called CEGAT). These appeals are related to a dispute regarding the duty of custom imposed on the respondent. The department had levied duty on the product known as Santicizer 429 imported by the respondent. The respondent had contested this duty and filed a claim for the refund. The Assistant Collector of Customs rejected this claim. The Assistant Collector on test found it to be organic compound (easter - type) in form of colourless viscose liquid and as per 7.0.046, should be considered as polymeric plasticiser. The Appellate Collector found that Chapter 38 of the Customs Tariff Act, 1975 was residuary in nature. According to him, if the item was not covered by any other chapter of the Customs Tariff Act, 1975 then it would fall under Chapter 38. The Appellate Collector further found that linear polysters were covered by CCCN 39.01(E). The Appellate Collector held that the impugned goods are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the poly-condensation products of terphthalic acid or Adipic acid with ethanediel covered by above mentioned CCCN headings. The Appellate Collector held this CCCN heading corresponds to 39.01/06 of the Customs Tariff Act, 1975. The Appellate Collector upheld the decision of the Assistant Collector. The respondent challenged the aforesaid order of the Appellate Collector before the Tribunal. The Tribunal allowed the appeals relying on the two decisions of the Tribunal one being Bhor Industries Ltd. v. Collector of Customs, Bombay (1984) 18 ELT 521 and the other Collector of Customs, Bombay v. Bhor Industries Ltd. (1985) 21 ELT 291. The Tribunal was of the view that the product was classifiable under the heading 38.01/19(6) of the Customs Tariff Act. The decision of the Tribunal was later was followed by the subsequent decision referred to hereinbefore.

2. In Bhor IndustriesLtd. v. Collector of Customs, Bombay (1984-18 ELT 521) (supra), the Tribunal observed that these are ordinarily liquids and, in rare instances, solids, as simple high boiling solvents for the polymers. These are neither resins nor do they seem to be plastic materials; on the other hand, these are added to resins to impart better flexibility or plastic properties to them. It was further observed that no evidence had been produced before the Tribunal to show that Santicizer was a resin or plastic material as defined in Explanatory Notes to C. C.C.N. It was neither similar to resols or polyisobutylene to attract the mischief of Note 2(c) to Chapter 39 nor a separately defined Chemical Compound so as to fall within Chapter 28 or 29 of Customs Tariff Act, 1975. Hence, it was classifiable not under Heading 39.01/06 as it stood before its amendment in 1978 but under 38.01/19(6) of Customs Tariff Act, 1975 as "plasticizer, not elsewhere specified".

3. The Tribunal in its decision considered the technical leaflet on the product. Santicizer 429 was described as a medium-high molecular polyester plasticizer made from a glycol reacted with a dibasic acid. Among the properties claimed for the product are good low temperature flexibility, excellent electrical properties, outstanding migration resistance, humidity, stability and resistance to oil and solvent extraction. It is said to be an excellent plasticizer for making oil-resistant high temperature PVC wire and cable compounds. It is also stated to be useful for plasticizing ethyl cellulose, nitrocellulose, acrylic caulking compounds, and adhesive systems based upon polyvinyl acetate, styrene-butadiene, and acrylic latices. Reference was also made to Kirk-Othmers "Encyclopaedia of Chemical Technology" 3rd edition, page 111, where it as observed as follows :

"A plasticizer is incorporated in a mat