ORDER
Jyoti Balasundaram, Vice-President
1. The above appeals arise out of two separate orders-in-appeal of the Commissioner (Appeals) : one appeal arises out of the classification dispute while the other is against the demand confirmation as a result of classification under Chapter Heading 3909.40.
2. We have heard both sides. The adjudicating authority had accepted the appellant’s claim for classification of “Amigen R” and “Amigen Conc. 50” under Heading 3809.00, on the basis of test report dated 1-6-1994 of the Deputy Chief Chemist who opined that the product is aqueous solution of condensation product of amide dicyandiamide and formaldehyde and such compositions are known to find use as textile dye fixing agent. This order was reviewed and appeal was filed before the Commissioner (Appeals) by the Revenue. The lower appellate authority accepted the contention of the Revenue based upon test report dt. 10-6-96 which is reproduced hereunder :
To.
The Asstt. Commissioner of C. Ex.
Pune-V, Dn.
Mehta Chambers, Kesarwadi,
Pune- 411034.
Sub : Test Memo in respect of M/s. General Pharmaceuticals Pvt. Ltd. reg. Please refer to your letter P.U.F. No. V(CL)17-205/VC/94 dt. 25-4-96 on the product ‘Amigen Conc. (50) and Amigen ‘R’.
It is clarified that products like Amigen a pre-polymer – a reaction product of Dicyandiamide and formaldehyde falls under the category of Note 3(e) of Chapter 39 instead of Note 3(c). As per the ISI “Glossory of terms used in the plastics Industry” (IS-2828-1964) “Pre-polymer” is
“A chemical structure intermediate between that of the monomer or monomers and the final polymer or resin”. Since the sample rightly gets covered under Note 3(e), the question of Note 3(c) does not arise.
(S. SEN)
Deputy Chief Chemist Bombay
3. The ld. Counsel submits that there is no dispute that the product is textile dye fixing agent. He relies upon HSN explanatory notes to Chapter 39, which clarifies that Pre-polymers are products not normally used as such but intended to be transformed into polymers by further polymerization. Therefore, the term does not cover finished products, to support his contention that the product in dispute are not pre-polymers. He relies upon Note 3(c) to Chapter 39 of the Central Excise Tariff Act submits that the product in dispute not being prepolymers, do not fall for coverage under Chapter 39. We find that the test report dt. 10-6-96 does not disclose the basis on which the samples of the disputed product has been held to be rightly covered under Note 3(e) of Chapter 39 of the Central Excise Tariff so as to hold pre-polymers. We also note that the request for cross-examination of the Dy. Chemist who prepared the report was not granted. We are informed that the factory is still in production and that these products are still manufactured. The interest of justice therefore require that the fresh samples of the product in dispute are drawn and tested and fresh decision taken thereafter on the classification after permitting cross-examination of the chemical examiner, if required by the appellant. We therefore set aside the impugned orders and remand the case to the Jurisdictional Assistant Commissioner/Jt. Commissioner for fresh decision, in the light of the above guidelines. We overrule the objection of ld. SDR that the matter does not require to be remanded for the reason that the classification dispute stands settled by the Tribunal’s order reported in 1995 (79) E.L.T. 280 (Tribunal) (Dai-Ichi Karkaria Ltd. v. Collector of Central Excise, Pune) for the reason that, although both under the old and the present tariff, amino-plasts are obtained by chemical synthesis, under the current tariff there are specific categories of products falling under Chapter Headings 3901 to 3911 and further for the reason that there is no dispute that the products in the present case are textile dye-fixing agents while in the case of Dai-Ichi Karkaria Ltd. the appellants’ claim for classification of an “Amigen” as Organic Surface Active Agent was made in inspite of the product not hearing any characteristics of Organic Surface Active Agent.
4. It is open to the appellants to raise all pleas including that of limitation.
5. In the result, the impugned orders are set aside and the appeals are allowed by way of remand.
(Operative part pronounced in Court)