S. Venkatesan, Sr. Vice-President

1. This is a revision application (hereinafter called "appeal") filed before the Central Government which under Section 35 P of the Central Excises and Salt Act, 1944, stands transferred to this Tribunal to be disposed of as if it were an appeal presented before the Tribunal.

2. The issue in this case is whether the goods manufactured by the appellants, and marketed under the name "Hicar-Ion" are assessable to duty under Item 65 of the Central Excise Tariff, as held by the Department, or under Item 68 ibid, as claimed by the appellants.

3. The matter came up before our predecessor Bench on 5-4-83. In its interlocutory order No. 20/83 of that date, the Bench rejected an application dated 15-2-83 from the appellants for permission to raise additional grounds under Rule 10 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. By the same order the Bench directed Shri K.D. Tayal, SDR, to ascertain how the Department was assessing similar products manufactured by two other companies. It was directed that the necessary information should be filed by 18-4-83.

4. In his letter dated 20-4-83 addressed to the Registrar, Shri Tayal had intimated that the product was being manufactured by the following 3 units:-

(1) M/s Amar Dye Chemicals Ltd.,

(2) M/s United Carbon India Ltd.,

(3) M/s Quality Industries, Dombivli.

He had further intimated that each of the units was paying duty under Item 65 CET.

5. Against this background, the matter was taken up for hearing. Shri Tamhane, who appeared for the appellants, made the following submissions :-

(1) According to their information, two of the three units mentioned in Shri Tayal's letter dated 20-4-83, namely M/s Quality Industries and M/s United Carbon India Ltd., were paying duty under .Item 65 but under protest. Further they were selling the goods exclusively to their industrial customers other than those engaged in rubber or rubber products, (At this stage it would be helpful to note that the appellants' products namely Hicar-Ion is also marked by its chemical names namely "Di-butyl Para Cresol" (DPT for brevity) or "Butylated Hydroxy Toluene" (BHT). It is further stated to be a Alkylated Phenol).

(2) Their product was no doubt an antioxidant, but it was not being used as a rubber processing chemical. At the relevant time their only customer was Hindustan Petroleum. As seen from the letters furnished by the two other manufacturers, similar goods manufactured by them were also not being used as rubber processing chemicals.

(3) In the report of the Chemical Examiner, as quoted in the letter dated 30-8-76 of the Superintendent of Central Excise, it was stated that "Di-butyl Para Cresol is mentioned in the chemical literature as antioxidant for rubber". This however was not conclusive, in the face of the actual use in India, vide point 2 above.

(4) Shri Tamhane filed a statement showing a number of tariff advices relating to chemicals mentioned in technical literature as being used as rubber processing chemicals which nevertheless had been classified under Item 68 GET on the basis of their predominant use.

(5) Shri Tamhane also relied on the Tribunal's Order No. 250/1980-C dated 19-5-83, in which imported .."alkylated phenol", also referred to as BHT, was held as not falling within Item 65 CET for the purpose of countervailing duty.

(6) Shri Tamhane also handed over a list of citations from various judicial decisions and orders of the Tribunal on the criteria for interpretation of the Tariff,

6. For the Department, Shri Tayal made the following points :-

(1) The product was admittedly an antioxidant. No doubt it had different uses, as seen from the literature, but the use as a rubber processing chemical was an important one. (In this connection he filed a number of extracts from published literature). Since one of the uses of the product was as a rubber processing chemical, it clearly fell within the scope of Item 65 ;

(2) Item 65 of