1999(03)LCX0045
IN THE CEGAT, COURT NO. III, NEW DELHI
S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)
CENTRAL CABLES (P) LTD.
Versus
COMMISSIONER OF CUSTOMS, BOMBAY
Final Order Nos. 181-183/99-C, dated 3-3-1999 in Appeal Nos. C/1804-1806/94-C
Cases Quoted
Lathia Rubber Mfg. Co. P. Ltd. v. Collector — 1998 (106) ELT 278 (Tribunal) — Referred [Para 3]
Universal Cables Ltd. v. Commissioner — 1996 (016) RLT 0340 (Tribunal) — Relied on . [Paras 3, 5]
Advocated By : Shri V.S. Nankani, Advocate, for the Appellant.
Shri M.P. Singh, JDR, for the Respondent
[Order per : V.K. Agrawal, Member (T)]. - These are three appeals arising out of a common Adjudication order dated 30-11-1993 passed by the Collector of Customs involving the issue of classification of imported products T.S. 530 whether under Heading 40.02 of the Schedule to the Customs Tariff Act as claimed by the Appellants Company M/s. Central Cables P. Ltd. or under sub-heading 3901.99 as adjudged in the impugned order. All the three appeals are being disposed of by one common order.
2. The facts, in brief, are that the appellants company manufacture cables for which they imported a product T.S.-530 which was classified by them under Heading 40.02 of Customs Tariff Act (CTA). Two show cause notices dated 22-5-1992 and 29-1-1993 for demanding duty, confiscation of goods and imposing penalty on the ground that the product was declared by them as Synthetic Rubber TS-530, deliberately suppressing the information that T.S. 530 was chemically known as Chlorosulphonated Polyethylene Elastomer which is classifiable under sub-heading 3901.99 of C.T.A. The Collector of Customs, Mumbai, under the impugned order, ordered the classification of goods under sub-heading 3901.99 of C.T.A., confirmed the demand of customs duty amounting to Rs. 12,24,244/- and imposed a penalty of Rs. 15,00,000/- on Appellate Company, Rs. 2,00,000/- on Shri G.D. Daga, Director and Rs. 1,00,000/- on Shri S.M. Lad, General Manager, holding that the impugned product was a modified polymer and by virtue of Note 5 to Chapter 39, it would merit classification under Heading 39.01.
3. Shri V.S. Nankani, ld. Advocate, submitted that the issue regarding classification of the impugned product has been set at rest by the Appellate Tribunal in the case of Universal Cables Ltd. & Others v. C.C., Bombay vide Final order No. 517 to 534/96-C [1996 (016) RLT 340]; that in fact their matter was heard by the Collector along with the case against M/s. Universal Cables Ltd. (UCL) which is apparent from para 13 of the impugned order at page 56 of the Paper Book; that the main defence of the case of M/s. Universal Cables Ltd. was lead by Shri Hidayathullah, Senior Advocate and the same arguments were adopted by him (Shri Nankani) for defence of Central Cables Company. He, further, submitted that since 1984 the impugned goods were classified under Heading 40.02 of C.T.A. and they had imported the goods since May, 1987; that as such a practice was established by the Custom House for classifying the product under Heading 40.02 of C.T.A.; that only in 1991, at the time of clearance of a consignment of similar goods of grade T.S. 430 imported by M/s. Universal Cables Ltd. a sample was tested and the Dy. Chief Chemist reported that the product is not Polychlorobutadiene Synthetic Rubber; that it is found to be Chlorosulphonated Polyethylene Polymer, a modified Polyethylene Polymer; it is a saturated polymer, not a synthetic rubber. He mentioned that on the basis of that test, the Department started investigation; that no sample of product imported by them was drawn; that it was mentioned in the show cause notice that M/s. Tosoh Corpn. Japan marketed their products under different grades viz. T.S. 320, T.S. 530, T.S. 530, T.S. 940 etc. He, therefore, contended that the decisions in the case of M/s. Universal Cables Ltd. is squarely applicable in the present matters in which it was held that the product was synthetic rubber of a type classifiable under Heading 40.02 of C.T.A. He also relied upon the decision in the case of Lathia Rubber Mfg. Co. P. Ltd. v. Collector of Customs, Bombay 1998 (106) ELT 278 (T) in which Tribunal held that Hypalon-40, Chlorosulphonated Polyethylene is classifiable under Heading 40.02 of C.T.A.
4. Shri M.P. Singh, ld. D.R. reiterated the findings contained the impugned order and emphasized that the goods were saturated Polymers; that Note 4(a) to Chapter 40 of the Customs Tariff Act applies only to unsaturated synthetics substances and accordingly saturated synthetics substances cannot come within the expression synthetic rubber and the impugned product was rightly classified by the Collector under sub-heading No. 3901.99 of C.T.A.
5. We have considered the submissions of both the sides. We observe that it is mentioned in the show cause notice itself that M/s. Tosoh Corporation, Japan manufactures TOSO-CSM and market the same under different grades, viz. T.S. 430, T.S. 320, T.S. 530, etc. The product in question in the case of Universal Cables Ltd. and Others v. Collector of Customs, Bombay, (supra) was TOSO CSM 430 which has been held to be classifiable under Heading 40.02 of the Customs Tariff Act. The impugned product T.S. 530, being another grade of the Product which was the subject matter for consideration in Universal Cables case, the ratio of the said decision is squarely applicable to the facts of the present appeals. Accordingly, following the ratio of the decision in Universal Cable Ltd. (supra) we held that the impugned product is classifiable under Heading 40.02 of the Customs Tariff Act. The order is therefore, set aside and all the three appeals are allowed.
Equivalent 2001 (135) ELT 144 (Tri. - Del.)