ORDER
V.P. Gulati, Member (T)
1. These three appeals have been filed by the Collector of Central Excise, Ahmedabad against the orders of the Collector of Central Excise (Appeals) Bombay. These involve a common issue and are therefore being taken up for disposal together. Arguments were heard in the case of Melamine Fibre Board Limited and the same were adopted by the learned advocate appearing for the other two respondents for the purpose of these proceedings. Learned JDR advanced common arguments for all the three appeals. The issues are being examined first in the case of Melamine Fibre Board Limited and the ratio of the decision of this case would apply to the other two cases also.
2. Brief facts of the case are that the respondents manufactured paper based laminated sheets out of the duty paid paper falling under T.I. 17 and bought out chemicals falling under T.I. 68. The chemicals -phenol, formaldehyde or melamine along with urea and few other additives are subjected to the process of mixing and heating to the desired temperature under controlled conditions. This results in a product which the respondents describe as resin forming solution. It is not denied that a process of condensation takes place and solution possesses resinuous properties. As seen from the record the respondents have described this resin forming solution before the lower authority as unstable and not having reached full condensation stage. This solution is impregnated as seen from the record in the paper sheets with the top layer being decorative one and these paper sheets together are pressed together under desired conditions of heat and pressure resulting in the formation of decorative laminated sheets. The lower appellate authority held these laminated sheets as assessable under T.I. 68 as against 15A(2) held by the original authority. The revenue is in appeal before us against this decision of the appellate authority.
3. The learned JDR for the Department has pleaded that till 16-10-1982, the respondents had been paying duty for the goods under T.I. 15A(2) and they filed a fresh classification list claiming assessment of the goods under T.I. 68 with effect from 18-10-1982. He pointed out that the respondents in this classification list declared that “no material falling under T.I. 15A(1) is used in these goods”. He pleaded that this was a mis-statement as the laminated sheets were made out of the raw materials as set out above. He pleaded that ‘A’ Stage resin or resole was first produced from raw material mentioned in para 2 above and this was used to manufacture the laminated sheets. He pointed out that the Deputy Chief Chemist also as seen from the order-in-original has opined as under :
“Sample is a cut piece of laminates sheet composed of synthetic resin (amino plast) and papers. It is an article of plastic”.
He pleaded that ‘A’ Stage resin produced by the respondents reacted with the cellulose present in the paper and bonded the sheets together. He pleaded that even the respondents in their letter dated 9-3-1980 which they submitted after the grant of hearing by the Assistant Collector relating to the approval of classification list have mentioned that they had got their goods tested by Alipore Test House and in the Test Report the goods’ have been described as under :
“The sample is cut piece of Laminated sheet composed of Synthetic resin (amino plast) and papers. It is an article of plastic”.
His plea is that the goods are articles of plastic and the same are considered so even by Alipore Test House authorities and inasmuch as the respondents have based their pleas on this Test Report showing thereby that they had accepted the same and therefore accepted the description of the goods as made of plastic material. He pleaded that the material out of which the laminated sheets have been manufactured was resin known as resole and same has been held to be falling under 15A(1) in the case of Collector of Central Excise v. Jay Enterprises & Five Others : 1987 (29) ELT 288. He pleaded that the Collector (Appeals) was in error in holding resin solution was not goods and therefore not falling under T.I. 15A(1), and that the goods could not be held to have been manufactured out of the materials falling under T.I. 15A(1) CET. He pleaded inasmuch as the Tribunal has held that so-called resin forming solution are resoles falling under 15A(1) CET, the laminated sheet have to be held to have been manufactured out of materials falling under T.I. 15A(1) as the resole is specifically covered under 15A(1) by virtue of the explanation to the tariff item. He pointed out that IS 2046-1969 covering specification for decorative thermosetting synthetic resin bonded laminated sheets, has described the materials in para 0.4 as the synthetic resin bonded sheets and that in preparing this Standard, considerable assistance has been derived from BS 3794:1964 in respect of specification for decorative laminated plastics sheets arid stated that in para 0.5 of this Standard it has been set out as under :
“The specification applies to sheets in which the only filler is paper and does not cover sheets with a core of any other material, namely, hardboard.”
Further, he pleaded, the scope of resin is as under :
“This Standard prescribes the requirements and the methods of sampling and test for aminoplastic faced phenolic laminated sheets having coloured and/or patterned surfaces incorporated during manufacture. The material is intended for interior use. The specification applies to sheets in which the only filler is paper and does not cover sheets with a core of any other material, for example, hardboard. When used by itself, the material covered by this standard is not intended for load bearing applications.”
The thrust of his arguments is that the paper used is only a filler and laminated sheets belong to the category of plastic sheets as set out in BS 3794:1964. He drew our attention to Indian Standard which provides for the method of test for thermosetting synthetic resin bonded laminated sheets. He drew our attention to para 0.2 which is reproduced below for convenience of reference and also para 2.4 and 2.6 which are also reproduced below :
“0.2 – Theremosetting synthetic resin bonded laminated sheets are finding application in increasing quantities in electrical, engineering, chemical and other industries in India. These laminates consist essentially of fibrous sheet materials impregnated or coated with a thermosetting synthetic resin binder and consolidated under high pressure and temperature into solid products characterized by high mechanical strength combined with light weight, good electrical properties, and resistance to moisture, heat and a wide range of chemicals. To serve as a basis in evaluating the quality of the various types of these laminated sheets, the necessity of a standard on methods of test for these sheets was felt.”
“2.4 – Synthetic Thermosetting Resins – Synthetic resins which on heating gradually pass from the fusible stage to one in which they are not only infusible but insoluble in the common solvents and in alkalis.
“2.6 – Synthetic Resin Bonded Laminated Sheet – Laminated sheet in which the bonding medium is a synthetic thermosetting resin.”
He also drew our attention to the heading Laminating and Impregnating in the Chapter on Fabricating and Processing in the book Polymers and Resin by Brage Holding and read the following therein :
“The term ‘laminiate’ is widely used (and misused) in the plastics industry. It is usually employed to designate impregnated products as well as true laminates. A laminated article is that formed by laying up of two or more sheets (which need not necessarily be flat). The sheets are usually held together by an adhesive of some kind, applied to their surfaces. An impregnated article, on the other hand, is one of porous or fibrous nature whose pores, capillaries, or interstices are filed with a resin or adhesive. By itself, it is not a laminate, but two or more impregnated sheets may be used to form a laminate. Both laminated and impregnated articles are, however, characterized by the fact that their structures are nonhomogeneous that is, solid matter in the form of sheets, whether fibrous or not, is used in conjunction with a liquid (usually viscous) which eventually hardens by any of various means to yield a completely solid object of great strength and rigidity. Since the term ‘laminate’ is so widely used in the plastics industry for both types of materials, this term is retained herein for the same uses. However, it is to be hoped that more accurate and descriptive nomenclature will eventually evolve.”
He drew our attention to Glossary of Terms used in the Plastics Industry : Part I, Polymerization and Plastics Materials. Relevant paras for convenience of reference are reproduced below :
“Plastics – A generic term for an arbitrary group of materials. based on synthetic or modified natural polymers which at some stage of manufacture can be formed to shape by flow, aided in many cases by heat and pressure”.
Synthetic resin – A resin produced synthetically.
Note : A term originally applied to members of a group of synthetic substances which resemble and share some of the properties of natural resins, but now applied in a wider sense to include materials which bear little resemblance to natural resins.
Reinforced plastics – A plastics material consisting essentially of polymer combined with fibrous material to enhance the mechanical strength. The term is most commonly used for thermosetting polyester resin with glass fibre. It is not generally used for high pressure laminates or mouldings made from particulate moulding materials.”
He pleaded that the laminated sheets manufactured by the respondents answer to the description Reinforced Plastics. He stated that no doubt paper and resin had been used in producing the goods but it is not the requirement for assessment under 15A(2) that the product should be made exclusively out of materials specified under 15A(1). He cited the case of Jalal Plastic Industries and Anr. v. Union of India and Ors. : 1981 ELT 653 (Guj.) (para 9) and also the case of Indian Cables Company v. CCE, Calcutta – 1984 (15) ELT 434 “(paras 1.1 and 12). His plea is that for production of articles of plastics addition of other materials like plasticiser etc. have been held to be essential requirement and for the same reason he pleaded use of paper for formation of plastic laminated sheets should be taken to be an essential requirement. In the same context, he pointed out, that the Tribunal in the case of V.M.T. Fibre Glass Industries v. CCE, Calcutta : 1986 (23) ELT 194 have held that articles made out of fibre glass having predominance of polyester resin would fall under 15A(2) (para 7). He pleaded that under the Harmonised Commodity Description and Coding System of the CCCN, the laminated sheets were covered under Chapter 39 heading 39.21. He pleaded that corresponding to this heading the entry in the Central Excise Tariff is 15A(2). His plea is that inasmuch as the laminated sheets in the Harmonised Tariff Code fall under heading 39.21, by correspondence it can be deemed to be covered under tariff item No. 15A(2). He pleaded that the international nomenclature of the Harmonised Code could be relied upon for deciding the classification. He cited the case of Nevichem Synthetic Industries, Bombay v. Collector of Central Excise, Bombay : 1984 (17) ELT 460 (Trib.) (para 7). He pleaded that the Tribunal in that case has held that item 15A of the Central Excise Tariff is not exactly aligned with the CCCN terminology as a result of the 1977 Finance Bill yet the pattern being broadly the same, assistance can be usefully derived from CCCN and its Explanatory Notes to understand the scope of the said item subject, of course, to the consideration that the express language of that item is kept in view. It was pointed out to him that the Harmonised Commodity Code while it covered articles of plastics, the articles set out in the respective chapters made no mention of the materials falling under another heading and out of which the plastic articles are required to be made out of as in the case of T.I. 15A(2) and under which the articles covered under that heading are to be those as are made out of items falling under T.I. 15A(1). He drew our attention to the book ‘Industrial Technology’ : page 177. He pointed out that at page 177 of this Book process of lamination is described under the heading “Plastic Laminate”. In conclusion, he stated, that inasmuch as the goods in question were plastic laminates these should not be consigned to residuary item when there was a specific item for the same. In this connection, he cited the case of Dunlop India Ltd. & Madras Rubber Factory Ltd. v. Union of India and Ors. : 1983 ELT 1566 (S.C.) (para 37). He pleaded that the Hon’ble Supreme Court has held in this connection as under :
“It is good fiscal poly not to put people in doubt and quandary about their liability to duty, when a particular product like V.P. Latex known to trade and commerce in this country and abroad is imported, it would have been better if the article is to nomine, put under a proper classification to avoid controversy over the residuary clause. As a matter of fact in the Red book (Import Trade Control Policy of the Ministry of Commerce) under item 150, in Section II, which relates to “rubber, raw and gutta percha, raw”, synthetic latex, including vinyl pyridine latex and copolymer of styrene butadiene latex are specifically included under the sub-head “Synthetic Rubber”. We do not see any reason why the same policy could not have been followed in the I.C.T. book being complementary to each other. When an article has, by ail standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause. The question of competition between two rival classifications will however stand on a different footing.”
He pleaded that his arguments in the other cases – Appeal No. ED/1924/ 86-C and No. ED/1925/86-G may be taken to be the same as pleaded by him in this case.
3A. Learned advocate for the respondents, Shri Hidayatullah stated that the issue before the Tribunal was not of assessment of resin forming solution and whether this is resole or not, but the assessment of the final product. He pleaded to determine whether an article answers to the description as an article of plastics or not stands settled by the judgment of the Hon’ble Supreme Court in the case of Geep Flashlight : 1985 (22) ELT 3 (S.C.). He pointed out that the Hon’ble Supreme Court has held in para 4 of the judgment for purposes of assessment under 15A(2) what should weigh is the trade parlance test and not the technical aspect of the article. He pleaded that the judgment of the Hon’ble Supreme Court given in the context of T.I. 15A(2) in the context of the entry as it was worded then is applicable in the context of the re-worded entry under T.I. 15A(2) also as the scope of the entry as to what constituted the articles made of plastics has remained the same. He pointed out that the Hon’ble Supreme Court has held that only such of the articles can be considered as made of plastics as are wholly made of mateial falling under 15A(1) and are commercially known as articles of plastic and not “also articles as are made with addition of other articles along with materials of 15A(1). He stated that he is aware that under T.I. 15A(2) lay flat tubings not containing any textile material alone are covered and a possible view can be taken that T.I. 15A(2) covered articles made of composite materials also i.e., from materials falling under 15A(1) and some other materials. He pointed out that exclusion of lay flat tubings made with textile material forming one of the constituents can be taken to be only by way of abundant caution but it in no way implied that under 15A(2) articles made out of materials falling under 15A(1) alongwith other article could be taken to be covered under 15A(2). He stated that commercially goods are known as decorative laminated sheets and that ISI 1962 and 1964 as cited by the revenue did not refer to the goods as articles of plastic. He pleaded that department’s reliance on BS (British Specification Standards) was not relevant- He pleaded that ISI specifications do not state that the papers used in the laminated sheets was only a re-inforcing material. He pleaded that even if BS specification described the goods as plastics, ISI had discarded these wordings. He pleaded that ISI Specifications were specific for this product and definition given in the ISI should prevail and ISI should be taken as indicative of commercial parlance test. He pointed out that Hon’ble Supreme Court in the case of Atul Glass v. Union of India : 1986 (25) ELT 473 (S.C.) have held that ISI specifications were relevant for the purpose of deciding how these goods are known in the trade. In this connection he drew our attention to para 11 wherein the Hon’ble Supreme Court has observed that publication of ISI could be regarded as a tangible piece of evidence in this regard. He pleaded that CCCN or the Harmonised Code could not be taken as guide for deciding the classification under the Central Excise Tariff. He pointed out that Hon’ble Supreme Court in the judgment (para 10) referred to supra have clearly said so. He pleaded that resinous solution provided an adhesion between layers of paper and pointed out that the process of adhesion and lamination formation under heat and pressure involved complex chemical reaction. In this connection, he drew our attention to the book “Polymers and Resins” by Golding : page 242. He further pointed out that the structure of the laminated sheets was not homogenous. He also pointed out that on test of predominance the product could not be taken as a plastic product, the paper being more than 70% by weight in the product. He pointed out to the Head Note which is reproduced :
“Since the plastic material is not the principal and predominant ingredient of the marblex Asbestos Vinyl Floor tiles but it constitutes only 10% to 15% of the total quantity used and works only as a binding agent, therefore it cannot be said that it was an article made of plastic falling under Item 15A(2) of the Central Excise Tariff. The contention that mere quantity of particular ingredient does not prove the character of the excisable goods is not sustainable in law specially when goods are to be classified with reference to raw materials.”
4. Learned JDR for the department in reply drew our attention to the wording of T.I. 15A(2) which is reproduced for convenience of reference :
“Articles of materials described in sub-item (1), the following, namely :-
Boards, sheeting, sheets and films, whether lacquered or metallised or laminated or not; lay flat tubings not containing any textile materials.”
He pleaded as seen from the entry the product covered thereunder are sheets and boards laminated or not. His plea is that the laminated sheets were specifically covered under this heading. He pointed out that word laminate used in the tariff entry had to be given a meaning and in that context therefore respondents goods would fall under 15A(2). He drew our attention to the process of manufacture of this sheet in the book “Polymers and Resins” by Brage Golding earlier referred to in para 3 and in Chapter on Fabricating Process of Resin. He reiterated his plea that ISI describe these goods as resin bonded and therefore these should be considered as plastic sheets for the purpose of T.I. 15A(2) and as process of lamination is covered under the scope of Tariff item 15A(2) these would appropriately fall under this item. He pleaded that the process of formation of the respondents goods has been dealt with in the decision of the Tribunal in the case of Bakelite Hyiam Limited, Bombay and Anr. v. Collector of Customs, Bombay and Anr. : 1986 (25) ELT 240. The Tribunal have clearly stated that the goods were laminated sheets. He pointed out that ISI could not be relied upon as the test of trads parlance and ISI specifications primarily are only for quality control and no inference of test of trade parlance can be drawn from the same. In this connection he drew our attention to the case of Indian Aluminium Cables Ltd. v. Union of India and Ors. : 1985 (21) ELT 3 (S.C.). He pleaded in this connection ISI is only for quality control. He further pointed out that Hon’ble Supreme Court in the case of Geep Flashlight : 1985 (22) ELT 3 (S.C.) had approved the judgment of Hon’ble Allahabad High Court : 1985 (19) ELT 68 and he pleaded in this judgment in paras 12, 15, 17 and 21 and 24 it has been held that for determining classification test of predominance of the materials constituting a product is not relevant. He stated that in case test of predominance of material was to be applied that product should fall under 17A(2).
5. Shri Hidayatullah advocate by way of clarification stated that general definition given in the literature should not be determinative of the issue. He pleaded the judgment of Hon’ble Supreme Court in the case of Atul Glass Industries was later in point of time delivered on 10-7-1986 while the Indian Aluminium Cables case decision was given on 27-8-1985 and therefore observations of the Hon’ble Supreme Court in that case regarding ‘ the ISI should take precedence over the observations in the case of Indian Aluminium Cables case. He further clarified that in the Geep Flashlight case in para 6, the Hon’ble Supreme Court has clearly set out that commercial parlance test has to be applied for goods falling under 15A(2) and also that for the plastic goods to fall under 15A(2) these should be wholly made out of articles under 15A(1). He also pointed out that item 17(2) GET could not be brought in at this stage for whatever reasons.
6. The points that arise for our consideration are :
(i) whether laminated sheets manufactured by the respondents fall within the ambit of the description in tariff item 15A(2) taking into account its physical form and the materials used;
(ii) if so, whether based on the trade parlance criterion as pleaded before us these should be considered as plastic sheets.
7. We observe that there is no dispute so far as the process of manufacture of laminated sheets in question is concerned. The raw materials, for the same are paper and what is described by the respondents as resin forming solution and the paper by weight in the product is over 70%. It is also not disputed that the product is in the sheet form so far as the physical form of the goods is concerned and that these are covered under the description sheet as used in the tariff item 15A(2). For the goods to fall under 15A(2) as seen from the wording of the said tariff entry, the requirement is that these should have been made out of materials falling under 15A(1). The revenue have pleaded at length that respondents by using phenol, formaldehyde and other chemicals first manufactured a product which is called resole and then used the said product for forming laminates by using the paper as the filler. In this context we may mention that so far as the assessment of solution described in the present proceedings as resin forming solution is concerned, the Tribunal in the case of Collector of Customs, Ahmedabad v. Jay Enterprises and Five Others : 1987 (29) ELT 288 where the process of manufacture of the solution involved was the same as in the present case, after examining all the aspect in that case held that the solution formed by chemical reaction of phenol and formaldehyde etc. was in fact ‘A’ Stage resin or resole and was therefore covered under the description ‘resole’ falling under T.I. 15A(1) CET. In that case also the solution manufactured was for manufacture of laminated sheets as is the case before us. The respondents, however, have refused to join issues so far as the classification of this solution is concerned and have pleaded that the issue in the proceedings is the assessment of the end-product laminated sheets and not of the resin forming solution. Be. it so, but the fact remains that this solution goes into the making of laminated sheets and for purposes of the classification of goods under 15A(2) it is very material to first ascertain as to whether the goods in question are made out of materials falling under 15A(1). In view of what we have held in the case of Jay Enterprise referred to supra, we hold that resin forming solution manufactured by the respondents for the manufacture of laminated sheets in view of pleas made by the revenue and also that there is no contradiction from the learned advocate for the respondents in this regard was in fact resole. We in this view of the matter hold that one of the two materials used in the manufacture of laminated sheet is covered by the description under T.I. 15A(1) CET.
8. The next question for consideration is whether laminates can be taken to be manufacture of resole. There were no interpretative rules in the Central Excise Tariff at the relevant time laying down as to how classification of articles made out of two materials was to be done. In the present case, notwithstanding the fact that the paper- predominates by weight in the laminate, the plea of the revenue is that paper is only in the nature of a filler as brought out by reference to the literature on laminates cited and therefore the product should be taken to be product formed out of resole. We observe that a similar plea before this Tribunal was made in the case of Bakelite Hylam v. Collector of Customs, Hyderabad : 1986 (24) ELT 643 but was negatived. In that case material called prepreg ‘P’ described as paper impregnated with phenol formaldehyde had been assessed under T.I. 17(2) by the original authority but on appeal by the assessee the Collector (Appeals) had upheld the assessment of the same under T.I. 15A(1) and had held that paper was only a filler as now claimed before us by the revenue. The revenue had on appeal against this order of the Collector in that case claimed that the assessment of the goods in that case is under T.I. 17(2), i.e., impregnated paper and pleaded against the paper being treated as a filler for resin. The paper in that case was impregnated with resole or ‘A’ Stage resin and under desired conditions of heat and pressure the impregnated ‘A’ stage resin was converted to ‘B’ Stage and product called Prepreg ‘P’ was formed. This was used for forming laminated sheets of the type manufactured by the respondents in the present case. We observe that for forming laminates the resole in ‘A’ Stage resin after impregnation of paper has necessarily to go through ‘B’ Stage and finally gets cured to ‘C’ Stage. The Tribunal in that case has held as under :
“The learned counsel for Bakelite Hylam Limited again stressed his argument that the Prepreg ‘P’ is not known as paper in the industry and as such it is not assessable under tariff item 17 CET. We observe that tariff entry covers all categories of impregnated paper. The case law cited in support of adoption of criterion of trade parlance as referred to in earlier paragraphs in the case of presspahn paper, polythene coated paper, varnished paper etc., it may be mentioned again, related to finished products which answered to a particular need of the consumer and these were known in the trade as articles other than paper on account of the specific characteristics these had acquired for a specific consumer need. In the instant case the impregnated paper has been prepared as an intermediate product for use as lamination and the impregnating material phenol formaldehyde has been cured upto ‘B’ Stage of curing only for final curing to ‘C’ -stage later. We are not persuaded, as mentioned in the case of impregnated cotton fabrics, that there is any trade criterion which takes it out of the category of impregnated paper as covered under Item 17(2) CET. Therefore we hold that the Prepreg ‘P’ is nothing but an impregnated paper falling under Item 17(2) CET prepared for used for lamination.”
No doubt in that case the revenue was in appeal before us against the Collector’s order holding the goods to be falling under 15A(1) and item 15A(2) CET was not canvassed. The fact, however, remains that the revenue was in appeal against the findings of the Appellate Collector in that case that paper in the Prepreg ‘P’ was only a reinforcement or a filler. In short, they were canvassing against the findings that the paper was only a filler. The Tribunal negatived the plea that the paper was only a filler and held that in view of the specific wording of the tariff item 17(2) which covered coated and impregnated paper the goods fell under T.I. 17(2) CET. It is true that the Prepreg ‘P’ dealt with in that case was held to be paper prepared for further use for lamination and was held to be falling under the description of item 17(2).
9. The point that arises for consideration is that the same paper if laminated with other similar impregnated papers by further curing of the resin under desired conditions of heat and pressure with the resin getting further cured to ‘C’ stage, i.e., the stage when the laminated sheets emerge, can it be said that the same paper became a plastic- article. If so, by what logic.
10. The laminated sheets as mentioned above arc not exclusively made out of phenol formaldehyde resin and in fact the resin content is less than 30% by weight. As mentioned above in the case of Bakelite Hylam, the Revenue pleaded against the paper being treated as a filler and the Tribunal after analysing fact in that case, held that in fact Prepreg ‘P’ was phenol formaldehyde impregnated paper. Inasmuch as the Tribunal has not held impregnated paper as resin, there appears to be no reason why the layers of the same when laminated should be considered as plastic sheets.
11. We observe that no plea has been made by either side as to what gives the product its character. As we have already stated that there were also no interpretative rules in the Central Excise Tariff at the relevant time. In the facts of the present case we feel it is relevant to examine as to what elements give character to the product. It is seen from the samples produced that the product is a fairly thick and rigid board like sheet with decorative surface. Looking at the item it can be said that while the paper provides the body the plastic provides the sinews which keeps the sheet rigid. The product has acquired its character from both phenol formaldehyde resin as also paper. The plea of the Revenue, however, is that the product should be treated as plastic sheet for the reason that the Indian Standard Specifications described the paper as a filler and the sheets have been described therein as synthetic resin bonded sheets. Our attention has been drawn to the Heading ‘Scope’ in IS -2046 -1969 which is reproduced for convenience of reference :
“This standard prescribes the requirements and the methods of sampling and test for aminoplast faced phenolic laminates sheets having coloured and/or patterned surfaces incorporated during manufacture. The material is intended for interior use. The specification applies to sheets in which the only filler is paper and does not cover sheets with a core of any other material, for example, hardboard. When used by itself, the material covered by this standard is not intended for load bearing applications.”
Our attention has also been drawn to ISI 1998-1962 which covers Methods of Test for Thermosetting Synthetic Resin Laminated Sheet. Our attention has further drawn to 0.2 Heading which is reproduced below for convenience of reference :
“Thermosetting synthetic resin bonded laminated sheets are finding application in increasing quantities in electrical, engineering, chemical and other industries in India. These laminates consist essentially of fibrous sheet materials impregnated or coated with a thermo-setting synthetic resin binder and consolidated under high pressure and temperature into solid products characterised by high mechanical strength combined with light weight, good electrical properties, and resistance to moisture, heat and a wide range of chemicals. To serve as a basis in evaluating the quality of the various types of these laminated sheets, the necessity of a standard on methods of test for these sheets was felt.”
Our pointed attention has been also drawn to 0.3 under which there is an acknowledgement as to the assistance drawn by framers of Indian Standards from different publications. One such publication mentioned there is BS-2572-1955, for Phenolic Laminated Sheet. The plea is that under the British Specifications the laminated sheets of the type under consideration have been described as Phenolic Laminated Sheets and therefore these can be taken as phenolic product, i.e., products falling under 15A(2). Our attention has also been drawn by the learned JDR for the Department to the books dealing with resins and plastics. In this context our attention has been drawn to the book Polymers and Resins by Brage Holding which has a separate heading for Laminating and Impregnating. It has been highlighted that in these books again the paper is considered only as a filler material for the resin and technically the product should be considered as a plastic sheet. In view of the inclusion of the laminated sheets in the plastic hearing in the book dealing with Polymers and Resins and also ISI specifications, the Revenue has convassed that the trade understanding of the product should be taken to be that the laminated sheets are plastic sheets.
12. We observe that no evidence from the trade or those who deal with this product or even from manufacturers has been produced in the proceedings to show that these products are bought and sold as plastic sheets or are considered so by them. We observe that evidence produced by the revenue by way of technical literature and ISI goes only to show that the laminated -sheets are produced in the segment of plastic industry or that the laminated sheets are the products of the Plastic Industry. What however is required to be shown is that the laminated sheets are the plastic sheets falling within the ambit of the description of item 15A(2). It is seen that for the purpose of manufacture of these sheets one of the raw materials is paper which has already been fully manufactured for the purpose of use as raw material or otherwise in the paper mills and for bringing the laminates into existence further material namely resole is required to be manufactured and after impregnating the paper with that necessary curing of the same for lamination of paper sheets is carried out in a manufacturing unit. In short, the knowledge of chemistry and the expertise of a plastic technologist are reuqired for manufacture of the laminated sheets. These processes essentially relate to the plastic industry and traditionally as is seen the paper industry is not dealing in these products and in any case these processes are far removed from the manufacture of the paper as such. Preparation of laminated sheets is one of the uses to which phenol formaldehyde is put and it is therefore natural that these laminated sheets should be dealt with by those dealing with resins and plastics. It, by itself, does not show or, in any way, conclude that the laminated sheets by themselves are to be treated as plastic sheets. All this shows is that the laminated sheets are the products of the plastic industry. The issue before us is not consideration as to whether the sheets are products of plastic industry but whether these are understood to be plastic sheets. No evidence has been produced by the Revenue that these goods are understood so in the trade by those who manufacture, sell or buy them. We observe that these sheets are generally being sold under the various trade names and there is no evidence before us that these are being marketed or are shown in the literature of various manufacturers as plastic sheets.
13. In another context, we observe, where the question under consideration was whether the industrial fabrics which were impregnated or laminated with plastic mateials, the Tribunal in the case of Multiple Fabrics Co. (P) Ltd., Calcutta v. Collector of Central Excise, Calcutta : 1984 (16) ELT 301 (Trib.) has held as under :
‘The point which was sought to be made by the learned Departmental Representative was that sub-item (3) of Item 22, which has been reproduced in para 19 above, refers to fabrics impregnated, coated or laminated with (plastic material). In fact his argument was to the effect that if a fabric once came into existence and was thereafter impregnated, coated or laminated with a plastic material, it should be deemed to fall within this sub-item, irrespective of the proportion of the plastic material or the nature of the final product. We do not find it possible to accept this argument. The wording of sub-item (3), as well as of the main item under which it appears, refers to “fabrics”. The fabrics may have been impregnated, coated or laminated with plastic material, but they must still be capable of being called “fabrics”. Impregnation, coating or lamination are all processes which upto a stage would leave the finished product still capable of being called a fabric. But when the proportion of plastic material reaches such a level that the final product does not retain the characteristics of a fabric, it would not, in our view, be proper or correct to treat this final product as an impregnated, coated or laminated fabric, merely because there is a fabric embedded inside it.’
As observed by the Tribunal in the case cited above, merely because plastic, to some extent, has been used in the formation of laminates it does not mean that the laminate itself can be considered as an article of plastic. No doubt, articles of plastic including laminate are covered under 15A(2), the question remains whether the product can be considered as a laminate of plastic or laminated sheets can be considered as plastic sheets. The laminate has been formed by putting together layers of resin impregnated paper, the laminates therefore are formed by the layers of papers. But all the same the Revenue has argued that the product as a whole should be considered plastic laminated sheets. Their plea that in ISI technical books it has been treated as belonging to the plastic segment of industry does not clinch the matter in their favour inasmuch as we have pointed out that there is no evidence that the sheets are considered as plastics sheets by those who deal with it in the trade. We observe that the Hon’ble’ Supreme Court in the case of Geep -Flashlight have interpreted the scope of the tariff item 15A(2) in the context of as to which articles of plastic would fall under T.I. 15A(2). Learned advocate for the respondents has drawn out attention to the decision of the Hon’ble Supreme Court in the case of Geep Flashlight : 1985 (22) ELT 3 (S.C.). He pointedly drew our attention to the observations of the Hon’ble Supreme Court in para 3 of the judgment which are reproduced for convenience of reference :
“It would be doing violence to language if one were to include plastic torch in articles under tariff item No. 15A(2) on the ground that a plastic tube is used for manufacturing plastic torch. Articles such as tubes, rods, sheets, foils, sticks etc. of plastic material merely describe plastic material in different shape and form and each word used therein takes it colour from the word just preceding and just succeeding and the adjectival clause ‘articles made of plastics’. Articles made of plastic meaning article made wholly of commodity commercially known as plastics, and not articles made from plastics along with other materials. By no canon of construction, a plastic torch can be read in conjunction with plastic tubes, rods, sheets, foils etc., made of plastics. Plastic torch is a distinct and different commodity commonly known in the market as torch. Ordinarily, torch is not described by the name of the material used in the tube in which the device of torch is housed. The commodity known advertised, sold and offered in the market is torch. Prefix plastic merely describes the quality of torch as distinguished from other type of torches. It is not sold primarily as plastic tube.”
Following with respect the criterion laid down by the Hon’ble Supreme Court, we hold in view of the discussion above, that laminated sheets in the present case cannot be considered as plastic sheets falling under tariff Item 15A(2) and are therefore assessable Under T.I. 68. We in view of the above, dismiss the appeal of the Revenue. The other appeals listed above are also therefore likewise dismissed.