Ruma Pal, J. - (1.) The petitioner manufactures paints, varnishes and other allied products. Prior to 1986, for the purpose of Central Excise the goods produced by the petitioner were classified under Tariff Item No. 14 of the First Schedule of the Central Excises & Salt Act, 1944. Tariff Item No. 14 in so far as it is relevant read : "14. Pigments, colours, paints, enamels, varnishes, blacks and cellulose lacquers - II. Varnishes and blacks - (i) Varnishes (ii) Bituminous and Coal-tar blacks ..."
(2.) Subsequent to the introduction of Central Excise Tax Tariff Act, 1985 which came into force from 28th February 1986, the petitioner filed classification lists contending that the products manufactured by the petitioner were "cut back bitumen", and as such classifiable under Tariff Heading No. 27.15 of the Schedule to the 1985 Act.
(3.) Before the classification list was accepted by the Central Excise Authorities, samples were drawn from the petitioner's products. The samples were submitted to the Chemical Examiner, Customs House, Calcutta. The Chemical Examiner submitted 4 (four) test Memos in respect of four of the petitioner's products. The Test Memos read as follows : "(1) Test Memo No. 3/PV/SHM/86 dated 30-7-1987 (Air Drying Black Insulating Varnish - 70/38/07). "The sample is black coloured free flowing liquid compound of bituminous matter and volatile organic solvents. Percentage of Nonvolatile Residue = 46.0 by wt. It gives a tack-free transparent adhered coating. The laboratory is not equipped to test the electrical insulation properties or varieties." Sd/- Illegible, 16-10-1986 Chemical Examiner Customs House, Cal. (2) Test Memo No. 57/SPL/27(l)/87, dated 29-4-1987 (IMC Bitugard Black 20/38/38) "The sample is black coloured free flowing liquid compound of bitumen in volatile organic solvents. It gives tack-free transparent adherent coating." Sd/- Illegible, 10-9-1987 Chemical Examiner Customs House, Cal. (3) Test Memo No. 58/SPL/27(2)/87, dated 5-5-1987 (Black Japan 73/38/86) "The sample is a black solution of bituminous matter in volatile organic solvent. It gives tack-free, transparent, adherent coating." Sd/- Illegible, 26-8-1987 Chemical Examiner, Customs House, Cal. (4) Test Memo No. 59/SPL/27(3)/87, dated 5-5-1987 (Black Tube Protective Coating-73/38/39). "The sample is a black solution of bituminous matter in volatile organic solvent. It gives tack-free transparent, adherent coating." Sd/- Illegible, 26-8-1987 Chemical Examiner, Customs House, Cal...";