Viton B falls under item 39 of the Indian Customs Tariff because it is a synthetic rubber.

( 1 ) THERE are two writ petitioners, the first petitionerm/s. Swastik Rubber Products Ltd. , is a Public Limited Company, second petitioner is a Secretary of the first petitioner and the shareholder. There are threerespondents, first is the Union of India, second is the Assistant Collector of Customs,bombay, and the third respondent is Appellate Collector of Customs, Bombay.

( 2 ) THE first petitioner is having its registered office at Kirkee, Poona, in thestate of Maharashtra. It is engaged in the business of manufacturers and dealers inall kinds of rubber, synthetic fabrics etc. In or about the 5th of August 1969 the firstpetitioner imported a product called Viton B for the purpose of manufacture ofvarious items or products of synthetic rubber from M/s. Du Pont Nemoursinternational SA. At the time of the import, the Collector of Customs levied dutyunder tariff item 87 which read on that date:all other articles any Revenue 60%otherwise specified. ad valorem. According to the first petitioner, the duty should have been levied under tariffitem 39 which read on that date :rubber Raw Revenue 40%ad valorem

( 3 ) THE first petitioner paid the duty levied under protest as it had to clear thecargo for its business. In or about 13th of November, 1969 the first petitioner madean application through his Clearing Agents for the refund of the excise dutycollected by the Department. On 24th of July, 1970, second respondent Asstt. Collector of Customs rejected the application. That was affirmed in appeal by theappellate Collector Customs. The first petitioner unsuccessfully approached theunion of India. On 11th of February, 1974 the Joint Secretary to Govt. of Indiapassed the order dismissing the revision of the first petitioner. On 8th of May, 1974the writ petition was instituted in this Hon ble Court. On 9. 5. 1974 the writ petitionwas admitted by this Court and interim orders were passed on 31. 5. 74.

( 4 ) ON 12th of August, 1970 i. e. after the import of the product by the petitionerin August 1969 by a Notification No. 76 the Custom Authorities brought Vitonunder item 82 (3) as "artificial or synthetic resins and the plastic material in anyform". Item 82 (3) (a) was noticed in Tariff Finance Act, 1970. On 3rd of September1974 an amendment application was filed by the petitioners in the writ petitionseeking to change item No. 87 to renumbered as 83 (2 ). On 13th of September, 1974the amendment was ordered by this Court. In 1975, Customs Tariff Act, 1975 wasenacted. The changes effected were the plastic and resin became classifiable underheading 39. 01 /06 and rubber synthetic became classifiable under heading 40. 01-04. Again the petitioners sought further amendment of the writ petition and this Courtby order dated 21st of November, 1976 permitted the amendment.

( 5 ) LEARNED Senior Counsel for the petitioner fairly brought to my notice thatsubsequent of the filing of the writ petition as per the interim orders passed by thiscourt provisional assessments were being made by the Department and thepetitioners will be satisfied if a suitable direction is issued with reference to reliefs (ii) and (iii) in para 13 of the writ petition as amended directing the Department tofinalise the matter in accordance with law after affording full and completeopportunity to the petitioners.

( 6 ) THE point that arises for consideration in this case is whether as on 1969viton B came under item No. 39 or duty could be levied under the residuary itemno. 87.

( 7 ) ON 24th of July, 1970 the Assistant Collector of Customs, Appraising Department (Revenue Section) Scindia House, Bombay-1 rejected the claim for refund bythe petitioners on the ground that the goods on test were found to be copolimerised products and they were correctly assessed to duty under item 87indian Customs Tariff and, therefore, charged to counterveiling duty under item15a of the Central Excise Tariff. No reasons were given by the Assistant Collectorcustoms and as submitted by