ORDER
Gowri Shankar, Member (T)
1. This application seeks to correct an error claimed to be apparent on the record in the Tribunal’s order under reference. In that order, the Tribunal had held that the money credit available by Notification 231/87, as it stood on 1-3-1989, prior to its amendment on 20-3-1990, would not be available on the ethyl alcohol used by the appellant in the manufacture of ethyl acrylate. It noted that the notification, as it stood at the relevant time, made the money credit available if ethyl alcohol is used in the manufacture of ethyl acrylate classifiable under Heading 39.06 of the tariff. The amending notification amended entry 33 (relating to ethyl acrylate) by making it available to ethyl acrylate falling under Heading 29.16 or Heading 39.06. It could not, therefore, be said that, it correct an error and was therefore clarificatory in nature and retrospective in application.
2. The contention in the application before us is that ethyl acrylate is a monomer and therefore cannot be classifiable under Heading 39.06. That heading is specific for polymers. This was the ground in the appeal, which even if not argued before it, Tribunal should have considered. It would then follow that the benefit of the exemption notification would be available to the ethyl acrylate. This is a mistake apparent on the record and therefore requires correction. The judgment of the Supreme Court in Jain Engineering Company v. CCE – 1987 (32) E.L.T. 3 is cited in support.
3. The Tribunal has noted in its order that the amendment made in 1990 did not delete Heading 39.06 figuring against ethyl acrylate in entry 33 of the Table to the Notification; it only added Heading 29.16. It would then follow that ethyl acrylate was classifiable either under Heading 29.16 or under Heading 39.06. It may be true that ethyl acrylate could not be classified under Heading 39.06; that heading is for polymers of a kind specified therein, and ethyl acrylate is a monomer. Nevertheless, there are two objections in accepting the claim that there is a mistake in the order. The first is that, if there is a mistake, it is not apparent on the record. Technical literature now produced by the applicant seems to suggest that ethyl acrylate is a monomer and not a polymer and hence not classifiable under Heading 39.06. No such literature however was produced before the Bench, which heard the matter or is referred to in the grounds of appeal. The statement that ethyl acrylate is a monomer, is not supported by any evidence. We do not think, it is unreasonable or wanting in knowledge on the part of the members of the Tribunal to suggest that they would not be expected to know of their own that ethyl acrylate is a monomer and not a polymer and hence not classifiable under Heading 39.06. If technical literature, and is necessary to establish the distinction between a monomer and polymer and why one cannot be or the other has to be gone into before deciding whether ethyl acrylate is a monomer and hence not classifiable under Heading 39.06, the Tribunal’s conclusion, even if erroneous can hardly be considered to be a mistake apparent on the record.
4. This is on the assumption that there is a mistake. It is however not possible to accept that there is a mistake at all. It does not necessarily follow that the effect of such an amendment was to correct an error in the notification that ethyl acrylate is classifiable under Heading 39.06, and now to say correctly that the credit would be available to ethyl acrylate classifiable under Heading 29.16. If that were the object of the amendment, it should have omitted Heading 39.06 and substituted Heading 29.16. But it did not. It continued to show both the headings against it. The only conclusion that can be drawn from this is that ethyl acrylate would be classifiable either under Heading 39.06 or under Heading 29.16. Possibly both these entries were put in because there was a practice in some parts of the country to classify (perhaps wrongly) ethyl acrylate under Heading 39.06 and the executive was of the view that the benefit should not be denied to such ethyl acrylate. From this amendment however it does not follow that it has retrospective application. The exemption contained in the notification has to be construed strictly. This is the ratio of the Supreme Court in Bombay Oil Industries. The Supreme Court’s judgment in Jain Engineering Co. v. CCE -1987 (32) E.L.T. 3 was concerned with the applicability of the exemption contained in Notification 281/76 and does not appear to us to lay down a proposition of law contrary to the settled law. Hence as a result of the amendment, ethyl acrylate utilised by the respondent in the manufacture of ethyl alcohol is rightly classifiable under Heading 39.16 and incorrectly classifiable under 39.06 (on the assumption that the classification claimed by the applicant is correct) would be available from that date. That is all that we can see the result of the application. It does not permit us to conclude that it cannot be available to ethyl acrylate manufactured prior to this date, classifiable under Heading 29.16.
5. The application is accordingly dismissed.