S.D. Jha, Vice-President (J)

1. The question for decision in this' appeal by Collector of Central Excise, Bolpur is whether the respondents product marketed under brand name of CALPOL 40-00, CALPOL 72-23, CALPOL 10-214, CALPOL 72-250 and CALPOL 42-00 are Maleic Resins eligible to benefit of exemption under Notification No. 157/81, dated 29-8-1981.

2. There is no dispute that the respondents manufacture fail under Item 15A of the First Schedule to Central Excises and Salt Act, 1944. the respondents were paying duty in respect of their manufacture under this item till September, 1981 under the description Polyester resin. On 28-8-1981, the respondents filed classification list claiming their manufacture to be Maleic resin fully exempt from duty under Notification No. 157/81, dated 29-8-1981 as amended. Samples of the product were tested at the Customs House Laboratory, Calcutta and the Chemical Examiner in his report stated that the product is Polyester resin. The respondents disputed the correctness of the Chemical Examiner's report communicated to them by the Superintendent of Central Excise under his letter dated 25-11-1981 and requested for retest of the sample as per their request dated 4-12-1981. No action seems to have been taken on this letter of the respondents. The Assistant Collector of Central Excise, Asansol Division by his order dated 12-8-1982 rejected the claim for classification as Maleic resin and exemption under the notification. The respondents then filed appeal before the Collector (Appeals) Central Excise, Calcutta. The Collector (Appeals) Central Excise, Calcutta by his order dated 3-4-1983 held that the appellants request for retest of samples as per Rule 56(4) of the Central Excise Rules, 1944 should have been granted and then decision for approval of the classification list taken. He held that the Assistant Collector should not have returned the classification list to the respondents. The Collector (Appeals) set aside the order of the Assistant Collector without prejudice to the right of the Assistant Collector concerned to determine the case afresh in accordance with law and after retest of the samples of the said goods as specifically requested by the respondents (appellants before him) in their letter dated 4-12-1981 - both at the Regional Testing Centre at Calcutta and by the Chief Chemist, New Delhi and thereafter to take a decision on classification.

3. After these orders of the Collector (Appeals) were received at the lower levels, the Superintendent of Central Excise, Purulia Range, West Bengal, took steps to obtain fresh samples vide Test Memo. Nos. 1/83 to 6/83. These samples as directed by the Collector (Appeals) Central Excise, were forwarded to the Chief Chemist, Central Revenue, New Delhi and Regional Testing Centre, Eastern Region, Calcutta of the Ministry of Industry to Government of India. The Chief Chemist, Central Revenues by his letter dated 4-8-1983 expressed the following result of test -

"Each of the six samples is in the form of colorless viscous liquid with characteristic smell. Each has resulted from polycondensation reaction and in each case the product containing styrene. Each is unsaturated polyester resin."

This result was followed by another letter dated 5-9-1983 from the Chief Chemist, Central Revenues Control Laboratory addressed to the Assistant Collector of Central Excise, Asansol Division. (This letter would be referred to at a later stage). From the Paper book filed by the respondents, it is seen that the Regional Testing Centre, Eastern Region, Calcutta addressed a communication dated 25-5-1983 to Prof. R.N. Mukherjee, Head of the Department of Chemical Engineering, Jadavpur University forwarding him 6 sealed samples of the product in question and requesting him to carry out test on the points desired in the request for test of the ground that they (the Regional Testing Centre) are not adequately equipped to carry out the analysis as requested for. The letter added