G. Sankaran, President

1. This is an appeal against Order-in Appeal No. 147/86(H)(D) dated 6-10-1986, passed by the Collector of Central Excise (Appeals), Madras, allowing the application filed under directions of the Collector of Central Excise, Hyderabad, under Section 35E(4) of the Central Excises and Salt Act, 1944 (hereinafter 'the Act', for short), against the Assistant Collector's order C. No. IV/16/SRP/38/84 VC. I dated 19-7-1985.

2. The facts of the case, briefly stated, are that the appellants filed a classification list No. 13/85 on 12-2-1985 hi respect inter alia of maleic resins of various grades, marketed under the brand name of "Hylak Polyester Resins". It was claimed that these resins qualified for duty exemption in terms of Central Excise Notification No. 70/84 as maleic resins. In the earlier classification list of 28-4-1984, these resins were not shown as maleic resins but separately and as liable to duty in terms of Notification No. 241/82. After issue of a show cause notice and holding adjudication proceedings, the Assistant Collector extended the benefit of Notification No. 70/84. It was against this order that the Collector of Central Excise, Hyderabad, caused an application to be filed before the Collector (Appeals), Madras. The Collector (Appeals) allowed the application holding that the Assistant Collector should have drawn a sample of the goods for test which was a mandatory requirement of Central Excise Rule 56 and the classification of the product without such test was not correct. He also held that according to the Chemical Examiner's report on the same product, obtained after the Assistant Collector's order by the Collector, Central Excise, Hyderabad, showed that the goods did not qualify to be termed maleic resins. In this view of the matter, the Collector (Appeals) set aside the Assistant Collector's order for de novo determination with a direction to allow the assessees to contest the opinion of the Chemical Examiner in terms of Rule 56(4). It is this order that is impugned in the present appeal.

3. We have heard Shri B. Shankar, Vice-President, Commercial, of the appellant-company and Shri L. Narasimhamurthy, DR, for the respondent-Collector.

4. At the outset, Shri B. Shankar, submitted that there was no dispute on the classification of the goods under the Schedule ("GET", for short) to the Act, as erroneously assumed by the Collector (Appeals). The goods admittedly fell under Item No. 15A(1), CET. The dispute was limited to whether they fell under the scope of Notification No. 70/84 dated 1-3-1984, as maleic resins. Shri Shankar also made it clear that he had no quarrel with the result of the Chemical test which showed that the sample was a colorless liquid, composed of synthetic resin (polyester type) in volatile organic solvent. The composition of the goods as declared to the department showed -

5. Before we proceed further, it is necessary to set out the relative entry and the definition of the term "maleic resins" in the said notification. It reads thus: -

"Alkyd resins and maleic resins including fumaric resins whether or not modified (but excluding moulding powders or compounds in any form)".

The exemption from duty was total and unconditional. The explanation to the notification, so far as relevant for the present purpose, read -

"For the purpose of this notification -

(ii) the expression "maleic resins including fumaric resins" means synthetic resins manufactured by reacting maleic acid and/or maleic anhydride and/or fumaric acid with one or more of the following components, namely, polyhydric alcohol, resins drying oils, terpenes and unsaturated hydrocarbons and includes chemically modified maleic resins but does not include blends of maleic resins with other artificial or synthetic resins".

6. As correctly submitted by Shri Shankar, and as laid down by several authorities, it is not the function of the Chemical Examiner to proffer any opinion on classification of goods under the tariff