S. Grover, Vice-President

1. The Mysore Industrial Plastic Corporation, Bangalore (hereinafter referred to as the importer) filed a revision petition (RA) before the Government of India on 20th of February, 1980 against the order No. C. 3/2502/77-dated 20th of July, 1979 passed by the Appellate Collector of Customs, Madras. The R.A. stood transferred to the Tribunal on the appointed day i.e. 11th of October, 1982 as appeal by virtue of the provisions of Section 131B of the Customs Act and is accordingly being disposed of as such.

2. The case involves levy of countervailing duty under Section 3 of the Customs Tariff Act in respect of consignment imported under Bill of Entry No. 1812, dated 24-7-76, consisting of Acrylic Sheets Crushed Scrap. The importer making a refund claim of c.v. duty before the Assistant Collector of Customs (Refunds) contended that the goods were not covered under Item 15(A) of the Central Excise Tariff at all. The goods imported, however, were held to be covered by item 15A(1) of the C.E.T. for the purpose of levy of c.v. duty. The importer appealed and though the Appellate Collector sent the case book to Assistant Collector for fresh examination, the original levy of duty was upheld again. The second order of the Assistant Collector of Customs is S25/1577 dated 21-8-77 and the duty amounted to Rs. 17,438.09.

3. The importer once again appealed and reiterated before the Appellate Collector of Customs that the c.v. duty could only be under Notification No. 28 dated 1-3-74 which, inter alia, specified that articles made of plastics excluding those specified in the notification were exempted from the levy under Section 2A of the Indian Tariff Act, 1934.

4. It was stressed that the notification further specified that the expression "articles made of plastic" shall have the same meaning as in sub-item (2) of item 15A of the First Schedule to the Central Excises and Salt Act, 1944. The importer also urged that the C.E.T. being selective tariff, broken/crushed material though may be originating from some goods in which plastics were used could not automatically be deemed to come under item 15A(2).

5. The Appellate Collector of Customs, however, held that goods imported though could not be held to be articles made of plastics but come within the category as plastic materials more particularly with reference to the specifications granules, or flakes or in the form of moulding powders. The Appellate Collector further held that even if it was conceded that the imported goods were not in the form of granules or moulding powder, it could not be automatically excluded from the scope of flakes. To project that the learned Appellate Collector was not certain and clear about the correct position and partly accepted the appeal also by directing refund of duty to the extent of Rs. 4359.52 we reproduce the following portion from para 3 of his order as follows : -

"The C.E.T. being the selective tariff all broken materials though made of plastics could not automatically be deemed to come under 15A(2). At the same time, the appellants' contention that they are entirely exempt from the levy of countervailing duty as the item is not falling under 15A(1) or 15A(2) is not maintainable inasmuch as the goods imported though in the form of scrap are essentially plastic materials in the form and shape in which the imported items were cleared for home consumption. They would still fall under the category as 'plastic material in any form more particularly with reference to the specifications granules, or flakes or in the form of moulding powders'. Even if it is conceded that they are not in the form of granules or moulding powders it could not be automatically excluded from the scope of 'flakes'. In this view, I hold that the item is not covered by the exemption notification No. 28, dated 1-3-74 However, the appellants are entitled to such benefits in the same being categorised as falling under item 15A(1) for purposes of levy of counte