1. M/s. Jenson & Nicholson (India) Ltd., Calcutta had filed a Revision Application to the Secretary, Government of India, Ministry of Finance, Department of Revenue under Section 36 of the Central Excises, and Salt Act, 1944 being aggrieved from order in Revision No. 16 of 1981 dated 22-6-1981 passed by the Collector of Central Excise, Calcutta under Section 35A of the Central Excises and Salt Act, 1944. After coming into existence of the Tribunal the said Revision Application was transferred to the Tribunal under Section 35P of the Central Excises and Salt Act, 1944 to be disposed of as an Appeal.
2. Briefly the facts of the case are that the sample of the product "Bituminous Black Varnish" was drawn on 14-1-1980 and sent to the Chemical Examiner for test and as per Chemical Examiner report the sample was in the form of black coloured free flowing liquid composed of Bitumin. Resin and volatile organic solvent. It gave an adherent tack fres transparent coating. It had the composition of Varnish.
However, its actual use may be ascertained. The learned Assistant Collector ascertained its use and had found that same was used for the painting of Oxygen Gas Cylinders. A show cause notice was issued to the Appellant as to why the product "Bituminous Black Varnish" should not be classified under Tariff Item 14II(ii). In reply to the said show cause notice the Appellant stated the composition of product as under :- The learned Assistant Collector had classified the product varnish falling under Tariff Item 14II(ii) of the Central Excise Tariff based on the test results. Being aggrieved from the aforesaid Order the Appellant had filed a Revision Application to the Colllector and he had confirmed the findings of the learned Asstt. Collector and had rejected the Revision Application. Being aggrieved from the aforesaid order the Appellant had filed a Revision Application.
3. The Appeal was called for hearing and nobody has appeared on behalf of the Appellant. The Appellant had sent a written letter to the effect that the Appeal may be decided on the basis of the Revision Application.
4. In reply Shri B.R. Tripathi, SDR has appeared on behalf of the Respondent. He has conceded that the Appellant's case is covered by an earlier judgment of the Tribunal in Order No. 8 of 1984 dated 29-10-1984 in the case of Dr. Beck & Co. v. Collector of Central Excise. The learned SDR has pleaded that the judgment is against the Revenue and is in favour of Appellant. He has left it to the bench for the disposal of the Appeal as it deems fit.
5. After going through the facts and circumstances of the case and the arguments of the learned SDR, we find no reason for denying the benefit of the earlier judgment of this Court in the case of Dr. Beck & Co.
(India) Ltd., Poona v. Collector, Central Excise, Poona vide Order No.C-817/1984 dated 29-10-1984 in Appeal No. ED (SB)/T/A/No. 451/1981-C.Accordingly we are of the view that the subject goods are more appropriately classifiable as Coal Tar Black under Item 1411 (ii) of the Central Excise Tariff. Para No. 8 of the said judgment is reproduced as under :- "Para 8. We have carefully considered the submissions of both sides.
The basis for the lower authorities classifying the product under Item 1411 (i) is the presence in the product of epoxy resin and that substances like resins, drying oils, pigments, must necessarily be absent if such products are to merit classification as Bituminous or Coal Tar Black. This was apparently based on a certain clarification of the Board. The Appellate Collector has touched on this aspect and disposed it of with the observation that it was for the appellants to rebut its correctness which they had not done for obvious reasons. No evidence has been placed before us to show that Bituminous or Coal Tar Black must necessarily be devoid of resins such as epoxy resin. From the definitions of "Varnish", it is clear that the term refers to a liquid preparation of resinous material in a solvent which when spread over a surface gives it a transparent coating unless pigments have been added. We also note that the Kirk-Othmer Encyclopaedia of Chemical Technololgy (3rd Edition, volume 16, page 743) defines 'Varnish' as "a liquid composition that is converted to a solid transparent film after being applied as a thin layer". In the case of the instant product, the test report shows it is a dark viscous liquid composed of bituminous matter and epoxy resin. The report does not reveal the presence of pigments.
The dark viscious nature of the product would rule out its being classed as a Varnish which as ordinarily understood, gives a transparent coat to the surface on which it is applied. McGraw-Hill Encyclopaedia of Science & Technology (Volume 14, page 357) has the following passage: "Asphalt varnishes are made by treating a bituminous material, such as gilsonite, with a drying oil and dissolving the reaction product in a solvent. These varnishes are black and opaque, unlike other varnishes. They are used for insulation, and for metal coatings for heat or corrosion resistance." The above description does not appear to fit the product in this case which, besides bituminous material and a vehicle, contains epoxy resin. Considering the state of the material available before us, we are of the view that the subject goods are more appropriately classifiable as Coal Tar Black under Item 1411(ii) CET."