K.S. Venkataramani, Member (T)

1. The appellants, herein, imported a consignment of polystyrene moulding powder for which Bill of Entry was filed on 9-9-1987 and goods cleared on payment of basic and auxiliary customs duty and additional duty of customs (CVD) was also paid @ 40% under Heading 39.07 CETA'85. Subsequently, the appellants filed a refund claim dated 9-11-1987 claiming refund of CVD on the ground that classification should be under sub-heading 3903.10 CETA read with Notification 133/86 dated 1-3-1986 as amended by Notification 239/87 dated 26-10-1987 and covered by the Explanation to the Notification 133/86 added by the amendment Notification of 239/87. The Assistant Collector of Customs, Appraising Refund Section, Calcutta Customs House by his order dated 29-6-1990 rejected the claim holding that the goods are not covered by Explanation to Notification 133/86 added by amending Notification 239/87 dated 26-10-1987 which was issued subsequent to the clearance of the goods. The appeal against the Assistant Collector's order was also rejected by the Collector of Customs (Appeals), Calcutta by the impugned order dated 26-10-1990 by observing that the goods had been cleared on payment of duty on 28-9-1987 when the Notification covering polystyrene moulding powder came into effect only on 26-10-1987 and the Notification cannot be given retrospective effect.

2. Appearing for the appellants, the Ld. Consultant, Sh. N. Ramanathan, submitted that the Notification 239/87 only added on Explanation to Notification 133/86 to say that for the purpose of that Notification, the term 'resins' shall be taken to include moulding powder of such resins also. The Ld. Consultant urged that the amendment was only clarificatory of the existing position and hence should be applied to the goods imported for which proposition be relied on the Cegat decision in the case of Collector of Customs, Calcutta v. Shaw Wallace reported in MANU/CE/0010/1990 : 1990 (50) ELT 143 (Tri.). He also relied upon Cegat decision in the case of New Polymer Industries v. Collector of Central Excise reported in MANU/CE/0134/1990 : 1991 (52) ELT 145 to say that phenolic moulding powder is nothing but phenolic resin in a modified form as found by the Department, itself, and referred to in that decision. Sh. Narasimha Murthy, Ld. D.R. contended that exemption notification is to be strictly construed and as at the time of import the Notification 133/86 covered only polystyrene resins, and did not cover moulding powder, the appellants have rightly be hold to be ineligible to claim exemption under a notification issued subsequent to clearance of the goods.

3. The submissions made by both the parties, herein, have been carefully considered. The goods imported are described in the invoice and Bill of Entry as Polystyrene Moulding Powder. The claim for refund is under Notification 239/87 which added the Explanation to Notification 133/86. The relevant portions are extracted below :

"Notification No. 133/86-C.E., dated 1-3-1986:

In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in column (3) of the table hereto annexed and falling under the heading Nos. of the schedule to the Central Excise Tariff Act, 1985, specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon, which is specified in the said schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table.

Notification No. 239/87-C.E., dated 26-10-1987 :

In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the Notification of the Govt. of India in the Ministry of Finance No. 133/86 C.E., dated 1-3-1986, namely:-

In the said Notification, the following "Explanation"