ORDER
K. Prakash Anand, Member (T)
1. This matter arises out of a Revision Application under Sectoin 36 of the Central Excises and Salt Act, 1944, against the Order-in-Appeal No. 1136/Cal/1981, dated 11th August, 1981, passed by the Appellate Collector, Central Excise, Calcutta. On the constiuttion of the Tribunal, this has been transferred here and is now being treated as an Appeal before us.
2. None appears on behalf of the appellants, who, in their written submissions, have stated that their’s is a small concern and that it is too much for them to bear the expenses involved in attending the hearing at New Delhi. While they were trying their best to be personally represented on the due date, they pray that, if they fail to appear, the appeal may be decided on the basis of their written submissions.
3. Briefly, the facts of the case are that in a classification list filed by the appellants on 18th March, 1976 (effective from 16th March, 1976), it was claimed that their product, declared “FRP Translucent Sheets (corrugated roofings)”, should be treated as non-excisable. The product was classified by the Assistant Collector as “Rigid Plastic Sheets”, falling under Tariff Item No. 15A (2) of the Central Excise Tariff, assessable to duty as per Government of India Notification No. 71/71, dated 29-5-1971, as amended. When the matter came up in appeal before the Appellate Collector, he ordered de novo adjudication, requiring that an opportunity be given to the assessee to defend their case and directing that a speaking order should be issued by the adjudicating officer. In the show cuase notice, issued to the appellants, it was stated that the product was reported to be classifiable as rigid plastic by the National Test House, Alipore, on a physical test of a sample. In reply, M/s. VMT Fibreglass Industries stated that what they were manufacturing was corrugated roofing, which was made from fibre glass mat and polyester resin in an approximate ratio of 40 : 60. It was argued that since the articles were not manufactured out of 100% polyester resin, the same could not be considered as articles of plastics. The appellants cited Trade Notice No. 285/Miner Fibre and Yarn-1/77, dated 20th December, 1977, issued by the Calcutta Collectorate, according to which any article containing mineral fibre in its composition was not to be classified as article made of plastic. It was also pointed out that following the issue of this Trade Notice, various orders were issued directing that proforma credit in respect of duty paid resins could not be utilised for payment of duty in respect of FRP products (roofing material) since such production did not come under Central Excise Tariff Item No. 15-A. Further that, even if their product in question is considered as an article made of plastics, within the meaning of Tariff Item No. 15A(2), such roofing was exempt from payment of Central Excise Duty according to Government of India’s Notification No. 68/71, dated 29-5-1971, on the ground that such roofing is profile in shape and not a sheet. As per the appellants, profiles arc uneven, possessing elevations, depressions and sharp reliefs etc., while sheets are even, more or less flat, broad or thin piece of anything, so that any two points of the product cannot be connected by a straight line without leaving the surface. It was claimed by the appellants before the lower authorities that in the Writ Petition No. 4652/75, the Madras High Court decided in the case of Tufflite Products Pvt. Ltd., Coimbatore [1978 E.L.T. (J 509)] that fibre glass panels should be classified as fibre glass products.. The Assistant Collector, in his Order-in-Original, did not take into account the order of the Madras High Court (supra), in view of the fact that appellants failed to produce a copy of the judgment referred to by them. On an examination of the facts of the case, the Assistant Collector gave the finding that the Collectorate Trade Notice No. 1/77, dated 20th December, 1977, could only relate to products of mineral fibre and yarn, which were manufactured with the aid of power. The Assistant Collector cited Trade Notice 63/Plastic-l/70, dated 5-3-1970, which clarified that, on the basis of Notification No. 26/70, dated 1-3-1970, rigid plastic boards and sheets, irrespective of the fact whether they are laminated or produced by any other process are liable to duty under sub-item (2) of Tariff Item No. 15A. The Assistant Collector considered Tariff Item 28F as an alternative classification but decided against it on the ground that the product in question was manufactured without the aid of power. So far as the claim of the appellant that if classified under Central Excise Tariff Item No. 15A(2), then their product would be covered by exemption under Notification No. 68/71, dated 29-5-1971, being profiles and not sheets, the Assistant Collector came to a finding that their product could not be considered as profiles as, in their classification list itself, they had described their product as FRP Translucent sheets. Referring to Indian Standard Glossary of Terms used in the plastic industry, IS : 2828-1964, which defined sheet as a piece of plastic sheeting produced as an individual piece rather than in a continuous length or cut as an individual piece from continuous length, the Assistant Collector felt that this definition would cover both a flat section as well as a corrugated one. He also took note of the fact that the products were marketed as sheets and not as profiles. Further, he took note of the fact that the National Test House at Alipore had tested and reported that the product in question was “Rigid Plastic”. Accordingly, he held that the goods were classifiable under Central Excise Tariff Item No. 15A(2), read with Notification No. 71/71. When the matter came up before the Appellate Collector, he upheld the order of the Assistant Collector, classifying the product under Central Excise Tariff Item No. 15A, stating that the question of classifying the product under Tariff Item 22F or 68 did not arise, on the ground that the appellants had themselves declared that their product contained 60% of polyester resin.
4. In appeal before us, appellants have stated that they were manufacturing rooting articles “FRP Corrugated and plain roofing” since 1972. These were commonly known and dealt with in trade parlance as “Fibreglass Re-inforced Products”. Their product was being assessed by the Department as articles made of plastics under 15A(2) and they were paying duty under protest, filing appeals separately against such classification orders. On 16th March, 1976, a new Tariff Item No. 22F was introduced, covering manufactures containing mineral fibres and yarn excepting asbestos cement products and manufactured with the aid of power. It is stated by the appellants that since their products are not manufactured with the aid of power, they would be classifiable under Tariff Item No. 68 and that, in view of the fact that their capital investment towards plants and machinery was far below Rs. 10 lakhs and their factory was running with three workers without the aid of power, they were fully exempted from payment of duty under that Tariff Item also, Finally, it is submitted that the Appellate Collector ought to have held that, for the sake of natural justice, it was essential for the adjudicating officer to grant opportunity to the assessee to represent their case before him before taking an adverse decision, and set aside the order as having been passed against the principles of natural justice. In the .latest communication, addressed to the Tribunal, dated August 19, 1985, the appellants have summed up their prayer as follows : –
“(i) The Order-in-Appcal dated 11-8-1981 (appealed against) as well as the Order-in-Original dated 11-7-1978 be set aside by the Hon’ble Tribunal as being wrong and illegal.
(ii) The material products be classified under the residuary Tariff Item No. 68 as fully exempted from payment of duty under the relevant notifications as were in force from time to time during 16-3-1976 to 28-2-1978.”
5. From the Department’s side, Shri V. Lakshmikumaran, learned S.D.R., reiterated the views expressed in the Order-in-original. He stated that it appeared, however, that the case of the appellants was covered by a decision of the Madras High Court in the case of Madras Lite Roofing, particulars of which, on a request from the Bench, he promised to furnish later on. Subsequently, we were informed that it has not been possible to locate this judgment.
6. The appellants have also not cited any such decisions in the appeal or in the further written sumissions made before us. We observe that before the lower authorities, appellants had cited the decision of the High Court of Madras in the case of Tufflite Products Pvt. Ltd., Coimbatore, in Writ Petition No. 4652/75 decided on 10th January, 1978 [1978 E.L.T. (J 509)], but this is not cited in the appeal or written submissions before us. We are, therefore, proceeding to consider the matter as if there is no earlier decision on the point at issue.
7. We have carefully considered the submissions made before us by both sides, both written and oral. In their final submissions before us, appellants have claimed that their product be classified under Central Excise Tariff Item No. 68. The other Central Excise Tariff Items, under which classification has been considered at lower levels, are Tariff Item 22F and Tariff Item 15A. So far as Tariff Item 22F is concerned, classification thereunder can be ruled out straightaway as this Tariff Item relates to “mineral fibres and yarn and manufactures therefrom in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power”, and the impugned products, undisputely, are being manufactured without the aid of power. Thereafter, the question arises whether the product would be correctly classifiable under Central Excise Tariff Item ISA (2) or under Central Excise Tariff Item 68. It is by now well-established that recourse to classification under Central Excise Tariff Item 68 is to be taken as a matter of last resort if the goods in question cannot find classification under the other more specific Tariff Items. The relevant provision of Central Excise Tariff Item No. 15A (2) read as follows at the material time :-
“Articles made of plastics, all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible, including lay flat tubings, and polyvinyl chloride sheets, not otherwise specified.”
It would be seen that the above Tariff Item covers articles made of plastics, all sorts, including various items specifically mentioned. So far as the impugned product is concerned, it is not in dispute that it is made up of polyester resin to the extent of 60%, the remaining content being fibreglass. It is conceded by the appellants that their product would not be classifiable under Central Excise Tariff Item 22F, which covers mineral fibres and yarn and manufactures therefrom in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, for the reason that their product is not manufactured with the aid of power. They have, therefore, requested for classification under Central Excise Tariff Item 68. But before considering classification under the Central Excise Tariff Item 68, we have to see why the goods cannot be classified under Central Excise Tariff Item 15A(2), which covers articles made of plastics, all sorts. It appears that the appellants’ stand is based essentially on the fact that manufactures made from mineral fibres and yarns with the aid of power, being covered under Item 22F if and when they are not manufactured with the aid of power, they should go to the residuary item, i.e. Central Excise Tariff Item 68. This is not a correct assumption. There is no basis for this claim or assumption, in view of the wordings of Central Excise Tariff Item 15A(2). In fact, classification of the impugned product has to be considered as if Central Excise Tariff Item 22F, which is entirely irrelevant so far as the classification of the impugned product is concerned, did not exist. As for the argument of the appellants that the impugned product cannot be considered as an article of plastic because it is not manufactured out of 100% polyester resin, this again rests on the assumption that only those articles, which are made out of 100% polyester resin, can be considered as articles of plastic. For this, we feel, there is no warrant whatsoever. It is admitted that this is a product in which polyetser resin predominates and no technical authority or any other arguments such as trade parlance, market understanding, etc. have been put forward to show that only articles made out of 100% polyester resin can be considered as articles of plastics. Therefore, this contention has to be rejected. Now coming to the citation of Trade Notice No. 289/Miner Fibre and Yarn-1/77, dated 20th December, 1977, cited by the appellants in their favour saying that, according to this, any article containing mineral fibre in its composition was not to be classified as articles made of plastic and pointing out that following the issue of this trade notice, various orders were issued directing that pro-forma credit in respect of duty paid resin could not be utilised for payment of duty in respect of F.R.P. product (roofing material) since such product did not come under Central Excise Tariff Item No. 15A.
It is to be pointed out that the position in this regard is fully explained in the letter of the Superintendent of Central Excise dated 31st January, 1978, addressed to the appellants, copy of which is at Annexure ‘E’ to the Appeal before us. It was explained in this letter that with the introduction of Tariff Item No. 22F, with effect from 16th March, 1976, manufactures containing mineral fibre and yarn, other than asbestos cement product, will attract Central Excise duty under Tariff Item 22F. As Trade Notice No. 1/77, dated 20th December, 1977, copy of which is at Annexure ‘D’ to the Appeal, pointed out, the percentage of mineral fibre was not a material factor and Tariff Item 22F covered all products containing any percentage of mineral fibre and yarn. However, as we have already stated supra, the additional essential criteria for classification under Tariff Item 22F was that such product should be manufactured with the aid of power. It is in respect of such products that, as explained in the letter of the Superintendent dated 31st Jaunary, 1978, proforma credit availed under Rule 56A on the polyester resin consumed in the manufacture of F.R P. sheets became inadmissible with effect from 16th March, 1976, when, as a result of the amendment of the Tariff, the end product became classifiable under the new Tariff Item No. 22F. The Trade Notice No. 1/77, dated 20-12-1977 as well as the letter of the Superintendent of the Central Excise dated 31st January, 1978, could have had no applicability in respect of the product of the appellants, which was manufactured without the aid of power. So far as the claim of the appellants, as an alternative plea, that if classified under Central Excise Tariff Item No. 15A(2), then their product would be covered by exemption under Notification No. 68/71, dated 29-5-1971, being profiles and not sheets, and, therefore, exempt from payment of Central Excise duty is concerned, we find that this has been adequately dealt with in the Order-in-Original which points out that the appellants themselves declared their products in Form I to be translucent sheets and that these were also marketed as sheets. In the Order-in-Original, it was pointed out, with reference to the Indian Standard Glossary of Terms used in the Plastic Industry, IS : 2828-1964, that the definition of a sheet would cover both a flat section as well as a corrugated one. This has” not been refuted by the appellants by reference to any technical authority or on the basis of any other supporting arguments.
8. We have also considered the submissions made before us that there was a violation of principles of natural justice in not allowing the appellants an opportunity to represent their case before the Adjudicating Officer, before taking an adverse decision. We find that a similar claim had been earlier made before the Appellate Collector, who, vide his Order-in-Appeal No. 6/CO/196, dated 19-1-1977 ordered a de novo adjudication of the matter giving an opportunity to the assessee to defend their case. As per records, the appellants were duly given a personal hearing on 4th July, 1978, when Shri P.K. Das, Excise Consultant, appeared before the Assistant Collector on their behalf. When the party went in appeal before the Appellate Collector of Central Excise, Calcutta, their appeal was posted for hearing on 4th August, 1981, and although they were intimated about the date of hearing on 13th March, 1981, they failed to enter appearance. They did not make any request for adjournment also. In the light of these facts, the contention of the appellants that they were not given an opportunity to represent their case personally, thereby violating the principles of natural justice, is wholly untenable.
9. In the light of our above findings, we uphold the order of the Appellate Collector of Central Excise and dismiss the appeal.