ORDER
J.H. Joglekar, Member (T)
1. The assessee filed classification lists for several products including Pidicryl 3252B. The classification suggested was under sub-heading 3906.90. As per jurisdictional Assistant Collector’s letter F. No. V (Ch. 39) 17-CL-181/90/4326, dated 11-6-1991 the final approval of the classification lists was communicated. According to it, pidicryl was not the commodity for which classification was changed by the department. The letter also clearly mentions that lists had been approved provisionally on their receipt. In the meanwhile, however, on 31-12-1990 a show cause notice was issued claiming that the disputed goods were classifiable under sub-heading 3903.90 and also seeking recovery of the differential amount of duty for the clearances effected during June, 1990. This demand was confirmed in the impugned order. The penalty was also imposed on the appellants.
2. Shri Santosh Kumar, Director of the Assessee firm in his arguments when the case had earlier come up for hearing on 4-11-1997 had claimed that when the clearances were effected in June, 1990, the price lists were provisional and, therefore, there was no cause for issue of a demand under the provisions of Section HA. At that time the Departmental Representative was directed by the Bench to verify the factual position. When this case was called today, Shri A.K. Madan, learned DR submitted that he had addressed a letter to the jurisdictional Commissioner on 5-11-1997 and had also issued a reminder on 1-1-1998. Since he had not received reply, he requests for adjournment. Shri Santosh Kumar, on the other hand, referring to the Assistant Collector’s letter dated 11-6-1991 submits that the letter very clearly states that assessment at material time was provisional. Since the assessee would face hardship if the proceedings are adjourned and since the letter gives sufficient indication of the situation, we do not accede to the request of the learned DR.
3. Apart from reiterating the claims earlier made, Shri Santosh Kumar refers to the correspondence on record with the Adjudicating Officer. In their letter dated 29-1-1991 the assessee had pointed out that portion of the test result communicated to them did not clarify the percentage of styrene and acrylic. It was their claim that where acrylic monomer pre-dominates, the classification applicable would be under sub-heading 3906. Subsequently, the information was given by the jurisdictional Superintendent vide his letter dated 8-3-1991 in which it was stated that contested goods were containing 68% acrylic monomer and 32% styrene monomer. Although test report was enlarged, a copy was not given to the assessee. Before the Adjudicating Authority the assessees justified their classification on the basis of predominance of the acrylic monomer. The Adjudicating Authority, however, conveniently disregarded their claim. The additional information from the test report communicated to the assessee vide Department’s letter dated 8-3-1991 concentrates only on the first information in which it was stated that the contested goods were aqueous emulsion of synthetic resin of the type of styrene-acrylate co-polymer. On perusal of Chapter Note 4 of Chapter 39 it becomes clear that where the question of classification of co-polymer and polymer blend is concerned, the pre-dominance by weight of a particular co-polymer would be determinative factor. On this ground also, the order of the Additional Collector does not sustain.
4. Thus, on both grounds, the appeal succeeds. The impugned order is set aside and appropriate relief is directed.