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Liberty Footwear Company Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC2035Tri(Delhi)
AppellantLiberty Footwear Company
RespondentCollector of Customs
Excerpt:
.....the product imported by the appellants, namely, levaform s.i.silicone emulsion which is used as mould release agent was correctly classifiable under heading no. 39.01/06 of the first schedule to the customs tariff act, 1975 as held by the lower authorities or under heading no. 34.01/07(2) as claimed by the appellants.3. despite notice of hearing, the appellants were not represented at the hearing. nor is there on record any communication from them seeking adjournment of the hearing. therefore, we have heard the departmental representative and proceed to dispose of the matter.4. shri sunder rajan, departmental representative referred us to our order in madras rubber factory ltd. v. collector of customs, madras reported in 1983 e.l.t.-2425 which he stated would apply to the facts of the.....
Judgment:
1. The captioned appeal was originally filed as a revision application before the Central Government which, under the provisions of Section 131-B of the Customs Act, 1962, has come as transferred proceedings to this Tribunal for disposal as if it were an appeal filed before it.

2. The question arising for determination in the present appeal is whether the product imported by the appellants, namely, Levaform S.I.Silicone Emulsion which is used as mould release agent was correctly classifiable under Heading No. 39.01/06 of the First Schedule to the Customs Tariff Act, 1975 as held by the lower authorities or under Heading No. 34.01/07(2) as claimed by the appellants.

3. Despite notice of hearing, the appellants were not represented at the hearing. Nor is there on record any communication from them seeking adjournment of the hearing. Therefore, we have heard the Departmental Representative and proceed to dispose of the matter.

4. Shri Sunder Rajan, Departmental Representative referred us to our Order in Madras Rubber Factory Ltd. v. Collector of Customs, Madras reported in 1983 E.L.T.-2425 which he stated would apply to the facts of the present case.

5. In the order cited by Shri Sunder Rajan, the product was a Silicone Emulsion imported by Madras Rubber Factory and the claim was that it should be assessed to duty under Heading No. 34.01/07(2) of the Tariff Schedule as against the classification adopted by the custom authorities, namely, Heading No. 39.01/06. The basis of the claim was, as in the present case, that the product was a mould release agent and that silicone emulsion had no resinuous property and would not fall within Chapter 39. After considering the matter at some length, we had taken the view in that Order that Silicone Emulsion used as mould release agent fell under Heading No. 39.01/06 of the Customs Tariff Schedule. Following that decision, we reject the present appeal.

6. A mould release agent that contains silicone oils in an aqueous emulsion is not covered by Chapter 39 which covers Artificial Resins and Plastic Materials. Note 2 of Chapter 39 prescribes that heading 39.01/06 shall apply only to goods of a kind produced by chemical synthesis answering to one of the descriptions of which silicones is one. It is clear that this is a reference to the resin, which of course, is the silicone emulsion present in the mould release agent.

But we cannot say that the mould release agent preparation was produced by chemical synthesis. It is only a preparation much used in industry.

As a principle, it is the reverse of an adhesive, which also can contain artificial resin. But, this is very important, a paint containing artificial resin, is not classifiable under Chapter 39. It has a different heading altogether. A water treatment chemical containing artificial resin is assessed not as a resin under heading 39 but as a water treatment chemical under heading 38. Many dental waxes contain artificial plastic as an ingredient but are not, on that account, assessed under heading 39. Lubricating preparations frequently contain silicone resins and compounds but these are assessed under heading 34.

7. In 1983 E.L.T. 2425 the Tribunal ruled that the silicone emulsion imported had not been shown to be a lubricating preparation the emulsions would not be assessable under Chapter 34. Hence, if they are a lubricating preparation, they must be assessed under Chapter 34. A mould release agent is a lubricating/reteass preparation-a parting agent giving an action opposite to the action of an adhesive. It prevents something sticking to another such as a base, a die, a mould, a frame etc, etc. In my opinion, the correct heading for this mould release preparation is 34.01/07(2). I order assessment accordingly.


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