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Greenply Industries Ltd. (Unit-I) and Others V/S Commissioner of Customs & Central Excise, Meerut-II

    Appeal No. E/58305/2013-EX[DB] (Arising out of Order-in-Original No. 42/Commr./Meerut-II/2012-13 dated 29/03/2013 passed by Commissioner of Central Excise, Meerut), Appeal No. E/58361/2013-EX[DB] (Arising out of Order-in-Original No. 40/Commr./Meerut-II/2012-13 dated 29/03/2013 passed by Commissioner of Central Excise, Meerut), Appeal No. E/58365/2013-EX[DB] (Arising out of Order-in-Original No. 41/Commr./Meerut-II/2012-13 dated 29/03/2013 passed by Commissioner of Central Excise, Meerut) and Final Order Nos. 70243-70245/2018

    Decided On, 17 January 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench, Allahabad

    By, MEMBER

    For Petitioner: B.L. Naresimhan and Atul Gupta, Advocates And For Respondents: Pradeep Kumar Dubey, Supdt. (AR)

Judgment Text

1. When the matter was called, a proxy counsel appeared on behalf of M/s. Rama Panels Pvt. Ltd. and prayed for short adjournment. In the matter the main counsel is not available. After appreciating the facts of the case, we find that the case is identical and similar with two appeals filed by M/s. Greenply Industries Ltd. and M/s. Archidply Industries Ltd. Thereafter, we attached the appeal along with two appeals mentioned herein above, as the issue is identical in all the appeals.

2. The appellants are in appeal against the impugned order, demanding duty on intermediate products immerges namely Urea Formaldehyde Resin, Phenol Formaldehyde Resin and Melamine Formaldehyde Resin. The facts of the case in all the matters are identical, therefore, all the appeals are taken up for disposal by a common order.

3. The facts in brief are as under:-

"The brief facts of the case are that the appellants are manufacturers of high pressure laminates and compact laminates located in the state of Uttrakhan

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d and are availing the benefit of area based exemption Notification No. 50/2003-CE dated 10.6.2003. In the said notification, the goods falling under heading No. 3909 to 3915 of Central Excise Tariff Act fall under negative list and are not eligible for the said notification. On the basis of investigation, the Revenue entertained a doubt about misuse of the said area based exemption by the appellants in as much as they are also manufacturing various resins namely, Melamine Formaldehyde Resin (MFR) and Phenolic Formaldehyde Resin (PFR), which are further used in the manufacture of various Laminated Boards. The said resins appeared to be classifiable under Chapter heading 3909 specified in the negative list and hence liable to duty. An investigation was launched by the Central Excise Intelligence and show cause notices were issued covering the period from April, 2007 to February, 2013. The matter was adjudicated and the Commissioner confirmed the demand after allowing the benefit of admissible credit on the inputs and input service. Aggrieved from the same, the appellants have filed this appeal."
4. The learned Counsel for the appellants submits, as under:-

"2. Learned Advocate for the appellants submits that PFR/MFR resins are classifiable under heading 3506 and are eligible for area based exemption notification. It was argued that they had obtained resins by mixing melamine/phenol, formaldehyde and other chemicals for use as adhesive in the manufacture of laminates. He referred to the exclusion note contained in HSN Explanatory Notes in Chapter 39, which clearly excludes from Chapter 39 such preparation specifically formulated for use as adhesives and contended that once a preparation is for use as adhesives, the same will get classified under heading 3506 and not under Chapter 39. He also argued that cross examination of Dr. Nath, Joint Director of IPIRTI whose test reports have been relied upon in the show cause notice and of another chemical examiner Shri Purushotam Kumar Sharma has brought out that these preparations are capable of being used/usually used as adhesives and glues in the laminates industry. He pointed out that several demands were raised on the basis of same allegation and same evidences against various manufacturers. Out of these demands, this Tribunal in the case of M/s. Balaji Action Buildwell v. CCE, Meerut-II- : 2016 (332) ELT 367 (Tri-Del.) has allowed the appeal of the assessee. He also relied upon the case of Shirdi Industries Ltd. v. CCE- 2017-TIOL-2338-CESTAT-Alland Board Circular No. 47/90 dated 31.8.1990, in which the classification of ploy vinyl Acetate was decided, and Circular No. 93/36/87-CX.3 dated 11.8.1987. He also argued that MF/PF resins are not marketable and hence not excisable. Ld. Advocate further relied on the Office Memorandum dated 1.6.2012 issued by the Ministry of Chemicals and Fertilizers clarifying that prepared adhesives/glues based on PF, UF and MF fall under Chapter 3506."
He also relies on the precedent decision of this Tribunal in the case of M/s. Greenlam Industries Ltd. vide Final Order No. A/62026/2017-EX[DB] dated 24.07.2017.

5. Heard the parties and considering the facts.

6. Considering the facts that the identical issues come up before this Tribunal in the case of M/s. Balaji Action Buildwell (supra) wherein this Tribunal has observed as under:-

"14. On examining scope of CETH 3909 read with Chapter Note 6 and HSN explanation the product in dispute being not in Primary Form of such nature mentioned therein (requiring curing, etc.) is not to be classified under such heading. The exclusion note made in HSN adds support to the same. The Revenue's assertion that addition of hardening agent does not take away the basic property of the product being a resin is not sustainable in the present dispute. Addition of NH4CL as hardening agent in the reactor/kettle before the resultant product is sent to glue kitchen for use in binding purpose has relevance to decide the issue. Prepared glue as it emerges is put into use in the binding section along with other inputs like wax, NH4CL and water for final binding. Chapter 35 covers glues. CETH covers Prepared glues and other prepared adhesives, not elsewhere specified or included. CETH Item No. 3506 99 91 covers synthetic glue with phenol urea or cresol (with formaldehyde) as the main component - Prepared glues and other prepared adhesives.

15. Based on the above criteria for classification, we find that the appellant had made out strong case for classifying the product as prepared glue. This is based on the facts like, the processes adopted and emerging product from the reactors/kettles, which is sent directly to glue kitchen for direct use in bonding of final product along with inputs.

16. The reliance placed by the Revenue on the test reports has been strongly contested by the appellants on various grounds. The test report was given to them after almost 3 months which deprived the chance for them to go for re-test. Further, the methodology followed by testing is not as per IS Standards relevant for synthetic resin additives. The test report of IPIRTI did not mention the pH value which is very relevant to arrive at the correct report. The appellant produced copies of different test reports done in 2011 as well as 2012 by the same Institute where pH values were indicated whereas in respect of their samples, no pH value has been indicated. They have also contested the findings in the test as they were not allowed cross-examination by the Original Authority. The denial was on the reason that the test report is a document and it is not required to be accepted only after cross-examination. The appellant's plea, that in such circumstances, the reliance placed on the test report is not legally tenable, merits consideration. We are in agreement on such plea on the reasons cited above.

17. Regarding purchase of resin reactor from Alex Engineering Works, it is seen that Revenue placed reliance on purchase order which mentioned the product as MF Resin Reactor. The appellants have contended that there are various types of equipments and machineries available for use in their type of industry. The suppliers of machinery made visits and had detailed discussions, thereafter the decision was to supply equipments of description appearing in their invoices of March, April, August and September, 2009. The details of description in these invoices were also relied upon in the show cause notice and it is apparent that the description of equipments supplied by Alex Engineering Works were different in name and nomenclature from the purchase order. We find that the support cannot be drawn by the Revenue on the basis of description in the purchase order when the supply invoices indicate the nature of goods supplied.

18. We find that the appellant have been consistently taking the plea that they are engaged in the manufacture of Prepared Glue containing Ammonium Chloride/Formic Acid, etc., in the Kettle installed in Shed-B and the glue prepared is transferred to other Sheds-C, D and E where it is used for bonding of their final products. Preparation of glue in Shed-B is a one stage process. They have also contended that the show cause notice itself admits that addition of hardener to the resin reduces the shelf life and brings into existence the glue with reduced shelf life. It is also admitted that use of hardener brings the quick bonding properties to serve as a glue.

19. As stated earlier before comparing the impugned product with the product of other manufacturers and also before applying case laws to the present facts, it is necessary that Original Authority should have examined the processes undertaken and the comparability of the goods in chemical nature. No such analysis or finding to that effect is available in the impugned order. The appellant have categorically submitted that the impugned goods are prepared for specific need and requirement of bonding of wood fibers/wood particles/coating of papers during the manufacture of final product like MDF Board, Particle Board, etc. The fact is that the preparation of impugned goods is in one stage process under controlled temperature and pH and addition of Ammonium Chloride Formic Acid in the processes, the emerging product being transferred to glue kitchen area for final use in bonding. We find that the classification of the product as primary resin is not sustainable. This is supported by Note-6 of Chapter 39 and HSN Explanation of such note. As such denial of exemption is not sustainable. Considering the above discussion and finding, we allow the appeal by setting aside the impugned order with consequential relief."

and hold that on the intermediate products emerges in manufacturing process of particle boards, the appellant is not required to pay duty. The said order has been followed by this Tribunal in the case of M/s. Shirdi Industries Ltd. (supra) and M/s. Greenlam Industries Ltd. (supra).

7. Therefore, following the precedent decisions of this Tribunal, we hold that the impugned orders are not sustainable in the eyes of law and the same are set aside.

8. In result, the appeals are allowed with consequential relief, if any.

(Dictated in Court