1. The captioned appeal was initially filed as a Revision Application before the Central Government which, under Section 131-B of the Customs Act, 1962, has come as transferred proceedings to this Tribunal for disposal as if it was an appeal filed before it.
2. The issue herein is whether the product "ALKYLATED PHENOL" (BUTY-LATED HYDROXY TOLUENE - to be referred to hereafter as BHT) imported by the appellants (IOC, for short) and cleared under cover of Bill of Entry No. D 127/2-4-1975 was liable to be charged to additional (countervailing) duty of Customs with reference to Item 65 of the Central Excise Tariff Schedule (CET) as a rubber processing chemical.
3. The goods were, in the first instance, released by the Customs authorities without levy of countervailing duty. Later on, countervailing duty, with reference to the excise duty leviable under Item 65 CET, was demanded from IOC. The contention of the IOC has all along been that the product was not used as an antioxidant for rubber by the IOC but only as an additive for lubricating oil, though one of the uses of the product is as an antioxidant in the rubber industry.
4. During the hearing on 25th November 1983, Shri Ranganathan submitted that the Tribunal in its Order No. 250/83-C in Appeal No. 721/78-C of IOC, decided that the product was not classifiable under Item 65 CET for the purpose of countervailing duty. Reliance was also placed on the Tribunal's Order No. 580/83-D in Appeal No. 27/78-D of HICO Products Ltd., Bombay -1983 E.L.T. 2483 (CEGAT), involving the same product. The chemical name of the product in those two cases and in the present case is Butylated Hydroxy Toluene (BHT). Shri Ranganathan further submitted that the onus to show that the product was predominantly used as a rubber processing chemical so as to attract countervailing duty was on the Department and this onus had not been discharged by them. Referring to the opinion given by the Director-General of Technical Development on a reference made by the Ministry or Finance, Shri Ranganathan submitted that the said opinion had no relevance to the present matter since it was on Alkylated Phenol resins and not on the product involved in the present matter which was Butylated Hydroxy Toluene, an Alkylated Phenol.
5. Appearing on behalf of the Department, Shri A.S. Sundar Rajan submitted that there was no resjudicata in tax matters. He relied upon AIR 1962 p. 53. He referred to the minute of dissent in Tribunal's Order No. 580/83-C and submitted that the said note fully represented his arguments and submissions. The end-use criterion was not very relevant in deciding classification disputes unless the tariff entry itself made that criterion relevant. In this connection, he relied on the decision of the Patna High Court reported in 1983 ELT 17 and AIR 1977 SC 597. Item 65 of the CET did not talk of the end-use of the chemical by a particular importer. It was not IOC's case that the product was not used as a rubber oxidant. The DGTD had given his technical opinion that the product was so used.
6. We have carefully considered the submissions of both sides. We agree with Shri Ranganathan that the opinion given by DGTD is not relevant for the present purpose since the query put to the DGTD was couched in general terms and did not seek his opinion on the specific product in question. The DGTD's opinion as pointed out by Shri Ranganathan, talks of Alkylated Phenol resins which is not the product before us. It is, no doubt, true that there is no res judicata in tax matters but the question of predominant use and other aspects of the case for and against classification of Butylated Hydroxy Toluene under Item 65 CET have been discussed at great length in the Tribunal decision in Appeal No. 27/78-D -1983 E.L.T. 2483 (C3GAT). We do not see any reason to differ from the said decision.
7. In the result, we allow the appeal and direct that the concerned Customs authorities shall grant consequential relief to the appellants within three months from the date of communication of this order.