2011(04)LCX0299

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI

S/Shri P.G. Chacko, Member (J) and Sahab Singh, Member (T)

Commissioner of Customs (Import), Nhava Sheva

Versus

Henkel Teroson India Ltd.

Final Order No. A/165/2011-WZB/C-I/(CSTB), dated 7-4-2011 in Appeal No. C/1095/2006

Advocated By -

Shri S.S. Katiyar, SDK for the Appellant.
Shri Bharat Raichandani, Advocate, for the Respondent.

[Order per : P.G. Chacko, Member (J)]. -

In this appeal filed by the department, the short question arising for consideration is whether the benefit of Customs Notification No. 21/2002 dated 1-3-2002 (Sr. No. 480) is available to the goods imported by the respondent. The respondent claimed the above benefit for the goods "Vinnolit SA 1062/7 (Polymer of Vinyl Chloride)" imported by them vide Bill of Entry No. 673027 dated 17-1-2006. However, they paid duty at normal rate as assessed by the assessing authority. This payment was made under protest. Subsequently, the assessment was challenged in an appeal preferred to the Commissioner (Appeals). The appellate authority set aside the assessment and directed that the Bill of F.ntry be reassessed by granting the benefit of Notification No. 21/2002-Cus. to the party. Hence the present appeal of the Revenue.


2. After examining the records and hearing both sides, we note that there is no dispute regarding classification of the imported item, which was classified by the assessee and the assessing authority under CTH 3904 of the First Schedule to the Customs Tariff Act. "Polymers of vinyl chloride" falling under CTH 3904 were chargeable to concessional rate of duty (10%) in terms of Sr. No. 480 of the Table annexed to the above Notification. It is also not in dispute that the goods imported by the respondent is a copolymer of vinyl chloride and vinyl acetate, the two monomer units being present to the extent of 93% and 7% by weight, respectively, in the copolymer. The question which now arises for con-sideration is whether this copolymer can be considered as "polymer of vinyl chloride". This question has been debated before us with reference to the provisions of CTH 3904, Explanatory Notes of HSN Heading 3904, chemical literature on polymers etc. Learned SDR has argued that a copolymer of vinyl chloride and vinyl acetate cannot be considered as a 'polymer of vinyl chloride' and hence the benefit of the Notification cannot be extended to the imported commodity. The learned Counsel for the respondent submits that a copolymer of vinyl chloride and vinyl acetate with predominant vinyl chloride content should be considered to be polymer of vinyl chloride.


3. On a perusal of the Tariff entry, we find that CTH 3904 covers "Polymers of vinyl chloride or of other halogenated olefins, in primary forms" and subheading 3904 30 covers "Vinyl chloride-vinyl acetate copolymers". Chapter Note 4 explains the expression "copolymer" thus - "the expression 'copolymer' covers all polymers in which no single monomer unit contributes 95% or more by weight to the total polymer content." As vinyl chloride and vinyl acetate monomer contents in the imported goods are 93% and 7% respectively, the polymer qualifies to be a "copolymer" and consequently the goods should remain classified under subheading 3904 30. Once again, the question which arises is whether this copolymer can be called a "polymer of vinyl chloride". To answer this question, we would like to look at the description of goods against the main Heading 3904, which reads thus - "Polymers of vinyl chloride or of other halogenated olefins, in primary forms." It is nobody's case that vinyl acetate is a halogenated olefin. Therefore, the copolymer of vinyl chloride and vinyl acetate must fall under the broad category of "polymers of vinyl chloride" as mentioned in the first part of the description of goods against Heading 3904.


4. In the result, the goods imported by the respondent can be regarded as a "polymer of vinyl chloride" for all purposes of Heading 3904. The item answers the description of goods at Sr. No. 480 of the Table annexed to Notification No. 21/2002-Cus. and is eligible for the benefit of the Notification.


5. The impugned order is sustained and the appeal is dismissed.

(Dictated and pronounced in Court)

Equivalent 2012 (278) ELT 0499 (Tri. - Mumbai)