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Chowgule and Co. (Hind) Pvt. Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)LC99Tri(Delhi)
AppellantChowgule and Co. (Hind) Pvt. Ltd.
RespondentCollector of Central Excise
Excerpt:
.....modified by notification 127/73 so to include within its ambit fumaric acid in addition to maleic acid/maleic anhydride as one of the reactants, the amendment really only clarified what the said expression along meant. since 1973, all these products were being classified only as "maleic resins". the products were got tested by two government laboratories-the national test house, alipore, calcutta and the national chemical laboratory, pune and both had reported the product as "maleic resins"-the former after test and the latter on the basis of technical data furnished by the appellants. this was further reinforced by three affidavits of 3 persons from the trade who used these products as maleic resins. summing up, the learned counsel urged that both in trade and technical parlance, the.....
Judgment:
1. The captioned appeal was initially filed as a Revision Application to the Central Government against the Order-in-Appeal No. II-1517/75, dated 23-2-1976 passed by the Appellate Collector of Central Excise, Bombay whereby he confirmed the Order No. V (ISA) 2-5/74/4046, dated 1-3-1975 passed by the Assistant Collector of Central Excise, Bombay.

On the setting up of this Tribunal, it came to be transferred to the Tribunal in terms of Section 35-P of the Central Excises and Salt Act (hereinafter referred to as the Act) for being disposed of as if it were an appeal filed before it.

2. In order to have a proper understanding of the dispute involved herein, it is expedient to straightaway refer to and set out relevant portions of certain notifications issued by the Central Government under Rule 8(1) of the Central Excise Rule (hereinafter referred to as the Rules) :- "GSR. In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts artificial or synthetic resins specified in column (2) of the Table below, falling under Item No. ISA of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty excise leviable thereon as is in excess of the amount specified in the corresponding entry in column (3) of the said Table :---------------------------------------------------------Sl. No. Description Amount2 Maleic Resin Eighty paise per kilogram3.

Phenolic Resin Eighty paise per kilogram Provided that any manufacturer of maleic resin or phenolic resin availing himself of the benefit of exemption under this notification shall not be permitted to pay the duty leviable on such resin manufactured by him at the ad valorem rate." "GSR. In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 156/65-C.E., dated the 23rd September, 1965, the Central Government hereby exempts artificial or synthetic resins specified in column (2) of the Table below, falling under Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon as is in excess of the rate specified in the corresponding entry in column (3) of the said Table.---------------------------------------------------------Sl. No. Description Rate3.

Phenolic Resins Fifteen per cent ad valorem.--------------------------------------------------------- (i) the expression "alkyd resins" means synthetic resins manufactured by the interaction of polybasic acids and/or anhydrides (excluding maleic acid/anhydride) polyhydric alcohols and monobasic fatty acids and includes chemically modified alkyd resins and liquid alkyd resins but does not include blends or mixtures of alkyd resins, with other artificial or synthetic resins ; (ii) the expression "maleic resins" means synthetic resins manufactured by reacting maleic acid and/or maleic anhydride with one or more of the following components, namely, polyhydric alcohol, resin, drying oils, terpenes and unsaturated hydrocarbons and includes chemically modified maleic resins but does not include blends of maleic resins with other artificial or synthetic resins ; and "GSR. In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue and Insurance) No. 122/71-Central Excises, dated the 1st June, 1971, namely :- In the said notification, in the explanation, in Clause (ii) after the words "Maleic anhydride", the words "and/or fumaric acid" shall be inserted." 3. The Appellants, as seen from the records of the case, were manufacturing, inter alia, synthetic resins (viz. Alresat 201C, 224C, 313C and 400C, later termed Hindresat 2001, 2024, 3013 and 4000) since long. In 1964, these resins were brought under excise control and charged to duty at 20% ad valorem +20% of the basic duty as special duty. On the issue of Notification No. 156/65 on 23-9-1965, these products were accorded full duty exemption on the declaration that they were alkyd resins. Samples were drawn on two occasions, on 19-10-1965 and again on 14-11-1967. On both the occasions, the Deputy Chief Chemist opined that the products were alkyd resins. The goods were allowed to be cleared duty-free. It, however, appears that, on 6-8-1968, during the course of audit, it was observed that the appellants were advertising these products as maleic resins in sales literature of their collaborators M/s. Chemische-Werke-Albert. Samples were again drawn on 25-8-1969. On test, the Deputy Chief Chemist opined that these products were "other than phthalic alkyds". Re-tests were conducted by the Chief Chemist, Delhi who opined that the resins in question were "condensation products of polybasic acid and polyhydric alcohol". It was further opined-taking into account technical data supplied by the appellants-that Alresat 201C (Hindresat 2001) was a maleic resin and that Alresat 224C, Alresat 313C and Alresat 400C were fumaric resins, i.e. "Artificial or synthetic resins, other than Alkyd, Maleic or Phenolic" resins. This was despite the fact that the appellants had advertised all these 4 products as Maleic resins. The Superintendent of Central Excise, taking into account the aforesaid facts and circumstances, passed an order on 18-5-1971 directing the appellants to pay duty at 80 Paise per Kg. -1-20% special excise duty on Alresat 201C since 23-9-1965 and at 20% ad valorem 4-20% special duty on Alresat 224C, 313C and 400C from 23-9-1965 to 24-5-1967 and thereafter at 30% ad valorem 4 20% special duty.

4. On appeal, the Appellate Collector, by his order_ of 27-6-1974, directed (he did not say, whom) de novo adjudication of the cases after giving an opportunity to the appellants to rebut the charges and after verifying that "the correct prices at relevant period are taken for working out the differential duty".

5. On de novo adjudication, the Assistant Collector, Bombay passed an order dated 1-3-1975 directing assessment of-Alresat 201C - as Maleic resin with effect from 14-11-1968. " 313C - as other than Maleic/Phenolic resin with effect from 14-11-1968 to 8-6-1973 He also modified the demand on the appellants to a figure of Rs. 11,62,215.16.

6. Aggrieved with this order, the matter was pursued in appeal by the appellants. The Appellate Collector, by his order dated 23-2-1976 rejected the appeal. In his order, he said : "I have gone through the records of the case and considerable arguments raised by the appellants. Keeping in view the reasons given by the Assistant Collector in his order and personal hearing proceedings, I do not see any justification to interfere with the order passed by the Assistant Collector. The appeal petition is, therefore, rejected." 7. It is this Order-in-Appeal dated 23-2-1976 that is now under challenge before us.

8. We have heard Shri R.K. Habbu, Advocate for the appellants and Smt.

Vijay Zutshi, Senior Departmental Representative for the Respondents.

We have also perused the record.

9. The period of the dispute before us is from 14-11-1968 to 31-5-1971 when there was no definition of the expressions "Alkyd resin" and "Maleic resin" occurring in Notification No. 156/65. The appellants' claim is that their products in dispute were alkyd resins eligible for duty exemption. The learned Counsel for the appellants drew our attention to the Department's communications dated 23-11-1965 and 6-1-1966, both confirming the classification of the products as Alkyd resins eligible for clearance without payment of duty. Even after the investigation consequent to audit inspection, the Deputy Chief Chemist had categorised the products as "other than phthalic alkyds". Shri Habbu submitted that this finding clearly showed that the products were alkyd resins but other than phthalic alkyds. He pointed out that the demand in DD2 No. 112886, dated 14-11-1969 did not show any ground for making the demand.

10. Referring to the three notifications (already adverted to), it was submitted that though the definition of the expression "Maleic resins"-as introduced for the first time by Notification 122/71-was modified by Notification 127/73 so to include within its ambit fumaric acid in addition to maleic acid/maleic anhydride as one of the reactants, the amendment really only clarified what the said expression along meant. Since 1973, all these products were being classified only as "maleic resins". The products were got tested by two Government laboratories-the National Test House, Alipore, Calcutta and the National Chemical Laboratory, Pune and both had reported the product as "Maleic resins"-the former after test and the latter on the basis of technical data furnished by the appellants. This was further reinforced by three affidavits of 3 persons from the trade who used these products as maleic resins. Summing up, the learned Counsel urged that both in trade and technical parlance, the disputed products were "Maleic resins" and should be treated as such for purpose of Notification 156/65 which did hot contain a definition of the expression.

11. On the subject of the demands against the appellants, it was submitted that the demand dated 1-9-1971 which purported to modify the earlier demand dated 14-11-1969 was invalid since the DDa demand of 14-11-1969 could not be combined with finalised provisional assessments. The Assistant Collector's order dated 1-3-1975 clearly indicated that the demand dated 14-11-1969 was under Rule 10. But the mandatory requirement laid down in Rule 10 of issue of a show cause notice had not been complied with in this case. The demand was, therefore, bad in law. In this context, reliance was placed on Bombay High Court's judgment in Precision Steel Fasteners and Ors. v. Union of India & Ors -1980 E.L.T. 693 (Bom.) wherein the Court held that a demand raised without issue of a show cause notice was illegal, null and void. Because of this, the combined demand dated 1-9-1971 was also bad in law. The Assistant Collector's order amounted to creation of a new demand which he could not do : at best he could only confirm the demand already raised. Referring to the impugned Order-in-Appeal, it was submitted that it was a cryptic and non-speaking order.

12. Replying on behalf of the Respondent, the learned Sr. Deptl, Representative stated that the technical literature produced before the Assistant Collector was not on record. The definitions of the expressions "alkyd", "maleic" and "phenolic" resins in Notification Nos. 122/71 and 127/73 were artificial ones and these could not be read into Notification 156/65. Relying on extracts from the "Condensed Chemical Dictionary" by G. Hawley and "Encyclopaedia of Chemistry" by Hampel and Hawley, it was submitted that alkyd, maleic and fumaric resins had different connotations. The affidavits filed with the revision application-a belated stage in the proceedings- should not be relied upon : no affidavits had been filed before the lower authorities. The test report of the Alipore Test House did not clinch the issue since there is no indication whether presence of fumaric acid was tested for. The report of the Pune Laboratory was not based on any test : it was only an opinion.

13. On the subject of demands, while agreeing that a show cause notice should have been issued, Smt. Zutshi contended that proper opportunity was afforded to the appellants in the adjudication proceedings and there was no travesty of natural justice.

14. We have carefully considered the contentions of both sides. The issues for determination are : (1) Were the disputed products "alkyd resins" within the meaning of Notification 156/65, dated 23-9-1965 as originally accepted by the excise authorities and as claimed then and now by the appellants 15. We have to commence our discussion of the first issue by noting that samples were drawn on 19-10-1965 for test and the Deputy Chief Chemist opined that these products were alkyd resins. Samples were again drawn on 14-11-1967 and tested with the same results. It was on 6-8-1968 that the Department apparently came to know that despite the aforesaid position, the appellants were advertising and selling the products as maleic resins. Samples were, therefore, drawn again on 25-8-1969 and the Deputy Chief Chemist declared them as "other than phthalic alkyds". However, the matter was taken up with the Chief Chemist at Delhi for further investigation. After testing the samples, the Chief Chemist gave the following opinion (extracted from the Supdt's order dated 15/18-5-1971) : "Each of 4 samples in question is in the form of lumps having a clear pale brown/yellow odour (colour ?); each in brittle in nature and could be powdered ; on heating each melts and burns leaving practically no ash after complete ignition. Each is insoluble in water but soluble in turpentine. Test for the present (presence ?) of rosin in answered affirmative by all the four samples. Test of presence of Phthalic acid/Anhydride condensation products is not answered by any of the four samples. However positive resorcinol test (Flourescein) in all the four samples shows that dibsaic acid (other than phthalic) has been used as one of the components. Hence none of the samples is based on phthalic acid/anhydride. Each of the four samples is found to have a high saponification number and the acid number of the free acid obtained after hydrolysis and treating the residual salt with mineral acid is found to be in the range of 240 and 328 in case of found samples. This would show that the resins in question are condensation products of polybasic acid and polyhydric alcohol.

Item (It ?) is seen from the copy of letter dated 20-7-70 of M/s.

Chowgule & Co., that the polybasic acid component in the resins is maleic anhydrides in case of Alresat 201C and Alresat 313C and Pentaery-thritol in Alresat 224C and 400C. In all these four products resin is also a component. Based on the above and information furnished in Technical books on Maleic Resin, sample of Alresat 201C, is Maleic Resin. It will also be seen from the party's printed pamphlet on HINDRESAT 2001, which according to the party is the same as Alresat 201C, that the party has advertised this as "Maleic Resin." In the manufacture of Alresat 224C, Alresat 313C and Alresat 400C fumaric acid has been used instead of Malic Anhydride and as fumaric resins are known to the Trade as distinct from Maleic resins, the Chief Chemist, Delhi, is of the opinion that the above three products are fumaric resins, that is to say, each as an "Artificial or synthetic resin, other than that of Alkyd Maleic or Phenolic" although the party has advertised identical products as Maleic Resins in their printed Pamphlet." 16. It appears from the record (the Supdt's order of 18-5-1971) that the appellants had shown the composition and ingredients of the 4 products as below:---------------------------------------------------------Alresat 201C 224C 313C 400CHindresat 2001 2024 3013 4000--------------------------------------------------------- Kgs.

Kgs.

Kgs.

Kgs.Resin 875.

935 925 822Calcium Acetate - 1.9 - -Glycerine 150 - 148 -Pentaerythritol - 143 - 156Maleic Anhydride 104 - - -Fumaric Acid - 59 86 131Percentage of 10.4% 4.8% 8.6% 13.1%Polybasic acid Maleic Fumaric Fumaric Fumaric."--------------------------------------------------------- 17. Now, "alkyd resins" is a broad generic description applied to a group of synthetic resins-the reaction products derived from polyhydrine alcohols, polybasic acids and fatty monomasic acids (Page 52 of "Encyclopaedia of Chemistry-3rd Edition-by Clifford A. Hampal and Gessner G. Hawlay." 18. From what is stated in paras 15, 16 and 17 above, it is clear that Alresat 201C (Hindersat 2001) is a maleic resin and Alresat (224C, 313C and 400C-i.e. Hindresat 2024, 3013 and 4000), fumaric resins. The nomenclature given by the appellants in their advertisement of the products-as maleic resins-cannot, in the circumstances, be the determinant of true nature of all these products. Only one of these has been found to a maleic resin, the others being fumaric resin.

19. Against the above background, we may now examine the appellant's claim. We have already noted that Notification 155/65, dated 23-9-1965, which was in force during the material period, did not have any in-built definitions of the expressions "alkyd, maleic and phenolic resins". These are scientific or technical terms and are to be construed in the scientific or technical sense of the terms. It is not similar to, say, the commodity covered by Item No. 15-CET. ("Soap" means all varieties of the product known commercially as soap) where trade or popular sense of the term is relevant. In this view of the matter, the affidavits filed at the revision stage-apart from the SDR's objection that they were not produced before the lower authorities-are of no help to ascertain the true nature of the products. Though the reports of the Alipore Test House and the National Chemical Laboratory are entitled to the highest consideration, there must be sound reason to discard the cumulative effect of the Chief Chemist's report and the Technical write-up of the appellants themselves on the products. It is well to remember that the Chief Chemist's report, besides being more detailed, was a contemporaneous document unlike the Alipore Test House reports which are of the year 1980. These reports say "the sample shows the presence of unsaturated dibsaic acid and considered to be a maleic resin". Though the samples were "tested for the presence of maleic or fumaric acid", the reports are not specific no the presence or absence of one or the other of these acids. It simply testifies to the presence of unsaturated dibasic acid without spelling out which acid. How it is "considered to be a maleic resin" has not been indicated. The National Chemical Laboratory report-again of the year 1977, long after the disputed period-row the other hand, is an opinion based on the composition data furnished by the appellants. Apparently, no test was performed : the opinion does not speak of a test. It goes on to say that "as per your definitions given in your letter of 1-9-1977, Hindresat 2001, 2024, 3013 and 4000 will qualify for the description of 'maleic resins'. The appellants' letter of 1-9-1977 to the National Chemical Laboratory has not been produced before us. The National Chemical Laboratory's opinion is also, therefore, of not much help.

Even if the Chief Chemist's report-which was partly based on the data furnished by the appellants-is ignored, there is no reason to discard the write-up furnished by the appellants themselves and adverted to by the Superintendent in his order dated 18-5-1971. (A copy of the write-up is not available on the record before us but this is not material since the write-up has been reproduced in the Supdt's order).

This write-up clearly indicates Maleic anhydride as one of the ingredients in the composition of Alresat 201C and Fumaric acids in the other 3 products. Therefore, there can be no doubt that Alresat 201C (Hindresat 2001) was a maleic resin and the other three-Alresat 224C, 313C and 400C, i.e. Hindresat 2024, 3013 and 4000, were furnaric resins.

20. Notification 156/65 was superseded by Notification 122/71, dated 1-6-1971 which, for the first time, defined the three terms : "alkyd", "maleic" and "phenolic" resins. This definition (para 2 supra) clarified "maleic" resin as the reaction product of maleic acid and/or maleic anhydride with one or more of the specified components. It also said "alkyd" resins were synthetic resins produced by interaction of polybasic acids and/or anhydrides (excluding maleic acid/anhydride) polyhydrine alcohols, etc. These definitions were modified by Notification No. 127/73, dated 9-6-1973 whereby "maleic" resin took in reaction products of not only maleic acid and/or maleic anhydride but also furmaric acid with one or more of the specified components.

"Alkyd" resins were re-defined to mean synthetic resins manufactured by the interaction of polybasic acids and/or anhydrides (excluding maleic acid/anhydride and fumaric acid except when used to the extent not exceeding 2% calculated on the quantity of main polybasic acid/anhydride ingredient in the resin, to reduce cooking time and improve the colour of the resin) with the specified components. In our opinion, the revised definitions cannot be of any help in so far as the present dispute pertaining to a prior period is concerned. Nor is the submission that the disputed products are being assessed as "maleic resins" since 1973.

21. We are, however, not clear how the Chief Chemist came to the conclusion that Alresat 224C, 313C and 400C are not covered by the term "alkyd" resins. Notification No. 156/65 did not contain any definition of the terms : "alkyd", "maleic" and "phenolic" resins. If the aforementioned 3 products were not maleic-nor, were they phenolic-they should have been classified as "alkyd" resins for, this term, as we have seen, is a generic and broad description and the earlier test reports did show the samples to be "alkyd" resins. It is also well to remember that it was only with effect from 9-6-1973 (Notification 127/73) that "alkyd" resins came to exclude resins obtained by interaction of fumaric acid with polyhydric alcohols, etc.

22. We have also perused the definition of alkyd resin in certain standards works of reference. Chambers Dictionary of Science and Technology gives the following meaning to the expression "alkyd resins" : "Alkyd resins. Formerly known as glyptal resins, i.e., condensation products derived from glycerol and phthalic anhydride. Now the term also covers dially esters and various polyesters used as resin binders in alkyd moulding materials." Again, according to the Concise Chemical and Technical Dictionary by H.Bennett: "Alkyd resin. Any condensation product involving a polybasic acid, like phthalic, maleic and succinic, and a polyhydric alcohol, like glycerin and the glycols, almost always with addition of modifying agents such as higher fatty acids; used in paints, varnishes and lacquers." From the above extracts it is clear that the terms "alkyd resin" is wide enough to take in maleic and fumaric resins. The relevant Notification 156/65 exempts alkyd resins from the payment of excise duty but prescribes a concessional rate of duty in respect of maleic and phenolic resins. Since the 3 products, Alresat 224C, 313C and 400C (corresponding to Hindresat 2024, 3013 and 4000) are neither maleic resins nor phenolic resins they would be eligible to be classified as alkyd resins. In the circumstances, we are of the view that these 3 resins were eligible to the benefit of Notification No. 156/65 as alkyd resins and we accordingly direct that consequential relief shall be extended to the appellants within a period of 3 months from the date of communication of this order.

23. We now proceed to deal with the 2nd issue, namely, the question whether the demands against the appellants were within time and validly made. This question does not survive in so far as the 3 resins covered by our order in the previous paragraph, are concerned. However, it survives in so far as the product Alresat 201C (corresponding to Hindresat 2001) is concerned. The period of the dispute before us is 14-11-1968 to 31-5-1971. (see Annexure 'A' to the Assistant Collectors order dated 1-3-1975). The demand in Form DD2 No. 112886, dated 14-11-1969 (for Rs. 2,55,820.80) was issued citing Rule 173-J.Evidently, this Rule has to be read with Rule 10. This demand was modified by the Superintendents' communication dated 1-9-1971 in pursuance of his order of 18-5-1971. The amount was revised to Rs. 27,59,304.19. This communication dated 1-9-1971 talks of the DD2 dated 14-11-1969 and issued under Rule 9-B of the Central Excise Rules, though the DDa itself makes no such reference. The Councel for the appellant has contended that the mandatory requirement of Rule 10, namely, issue of show cause notice had not been compiled with prior to the issue of the DDz demand dated 14-11-1969 and, therefore, the said demand was bad in law. Because of this, the subsequent demand dated 1-9-1971 was also bad in law. ' The SDR has agreed that a show cause notice should have been issued, but contended that due opportunity was afforded to the appellant in the adjudication proceedings and, therefore, there was no breach of the principles of natural justice.

24. In the decision reported in 1980 E.L.T. 693 (Bom.), the Bombay High Court has clearly held ihat in the absence of a show cause notice when the Rule required issue of a notice, the demand raised under Rule 10 was illegal and void. Following the ratio of this decision, it must be held that the demand dated 14-11-69 was void and, therefore, cannot be enforced. It is hereby set aside.

25. The question remains of the 2nd demand dated 1-9-1971. It would appear that the appellants were told by the Supdt. by his letter dated 19-8-1969 that the products would be assessed provisionally under Rule 9B till further orders. On 19-5-1970 he again wrote to say that the products would be assessed at the rate applicable to maleic resins under Notification 156/65 till further orders. He followed this up by a letter dated 15-3-1971 by which he said that one of the products would be assessed as maleic resins and the other as other than alkyd maleic or phenolic. The appellants were called upon to file revised classification lists and price lists. The appellants, by their letter dated 1-4-1971 asked for an appealable order which the Supdt. made on 18-5-1971. Following this order, a communication dated 1-9-1971 was sent by the Superintendent to the appellants modifying the earlier demand. We have already set aside the demand of 14-11-1969. However, this need not necessarily invalidate the whole of the demand dated 1-9-1971 except to the extent of the amount covered by the demand dated 14-11-1969.

26. From the Assistant Collector's adjudication Order No. V (15)2-5/74/4046 (dated 1-3-1975), against which the 2nd appeal is before us, says that provisional assessments were commenced from 1-8-1969 and were continued during the period ending 30-5-1971. He has stated that in terms of Rule 9B no show cause notice was required to be issued and, therefore, the objection taken by the appellants that no show cause notice was issued was not valid. He has taken the view that what was material was the finalisation of the dispute in assessments.

The appellants on the other hand have adverted to a letter dated 18-1-1971 from the Superintendent to the following effect : In view of the clarification received from the Government of India that the term 'Alkyds' includes 'Modified Alkyds' all the assessments of Modified Alkyd Resins which were done provisionally as excisable or exempted are now hereby finalised as Exempted.

Similarly all the classification lists of Modified Alkyd Resins which were approved provisionally as exempted or excisable are now hereby approved finally as exempted." It is not clear from the aforesaid letter whether the modified alkyd resins referred to therein are the very products which form the subject-matter of the dispute before us. No material has been placed before us by either side to throw light on this aspect of the matter.

Having regard to the overall picture emerging from the narration of facts and events, we are inclined to think that this letter dated 18-1-1971 has no relation to the products in dispute which have all along been designated as maleic resins or other than alkyd, maleic or phenolic resins and not as modified alkyd resins.

27. We notice from the details of the calculations given in Annexure 'A' to the Assistant Collector's order dated 1-3-1975 that the demand for duty created as a result of the said order in respect of Alresat 201C (Hindresat 2001) is in respect of the period 14-11-1968 to 25-5-1970. We have already set aside the demand notice in DD2 form dated 14-11-1969. What remains, therefore, is the period 15-11-1969 to 23-5-1970. Relevant to this period is the letter dated 19-8-1969 from the Department to the appellants saying that the goods would be allowed to be cleared without payment of duty provisionally under Rule 9B.Referring to this letter, another letter dated 19-5-1970 was sent by the Department to the appellants to the effect that the products would be assessed at the rate applicable to maleic resins under Notification No. 156/65 till further orders. Then followed the letter dated 15-3-1971, this time referring to the letter dated 19-5-1970, and saying that Alresat 201C (Hindresat 2001) would continue to be assessed to duty as maleic resin and asking the party to file classification lists, price lists, etc. It is, therefore, evident that the, assessments during the period 15-11-69 to 23-5-1970 in respect of Alresat 20JJp (Hindresat 2001) were provisional and had not been finalised. Since the assessments had not been finalised and the chain of events Shows that reasonable and* adequate opportunity had been given to the appellants to put forth their case regarding the assessment of this particular product, it cannot be said that the proceedings leading to the demand contained in the adjudication order dated 1-3-1975 in respect of this product were vitiated by non-compliance with the principles of natural justice. We, therefore, uphold the assessment of this product as maleic resin and the appellants shall be liable to pay the duty leviable there--on at the rate applicable to maleic resins for the period 15-11-1969 to 25-5-1970.

28. The appeal is disposed of in the light of the above findings and directions.


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