Ajit K.Sengupta, J. - (1.) This appeal arises out of a Judgment and Order dated 16th January, 1987, passed by Mr. Justice Sudhir Ranjan Roy, the learned Trial Judge, who allowed the writ petition filed by the respondent-assessee [reported as National Insulated Cable Company v. Collector of Customs in 1987 (12) ECC 407 (Cal)]. The only question involved in the said writ petition relates to the question whether Hypalon-40, a chemical compound which is used in the manufacturing of electric cables is synthetic rubber or synthetic resin for its proper classification under the appropriate heading of Customs Tariff Act, 1975 for the purpose of assessment to customs duty. The relevant facts as noted by the Trial Court are as under : The writ petitioner, the respondent herein having its factory at Shyamnagar, 24-Parganas, West Bengal, is carrying on the business of manufacturing various types of electrical cables and wires. In course of its said business, the respondent is required to import various items including synthetic rubber sold under the trade name of Hypalon-40 which is used for insulating wires and cables. The said Hypalon-40 is manufactured by only one concern in the world, namely, DU POINT DE NEMOURS INTERNATIONAL, S.A. in the United States of America. The said manufacturer is selling the said Hypalon-40 throughout the world as "synthetic rubber," According to the respondent, the said Hypalon-40 is also known in the market and amongst commercial people the world over including India, as a variety of synthetic rubber.
(2.) The respondent imported certain quantities of Hypalon-40 but the customs authorities insisted that the material so imported was synthetic resin and not synthetic rubber. The Customs authorities demanded customs duty at higher rates under chapter 39 of the Customs Act, 1962 [First Schedule to the Customs Tariff Act, 1975] instead of assessing the same as synthetic rubber under Chapter 40 of the said Act. The respondents got the disputed consignments released from the customs authorities under two different interim orders passed by this Court. In the instant writ petition, the respondents asked for a declaration that the bags of Hypalon-40 imported by them were assessable as synthetic rubber under Item 40.01/04 of the Customs Tariff Act, 1975 and also for a writ in the nature of mandamus directing the appellants herein to assess the said bags of Hypalon-40 as synthetic rubber under the said item.
(3.) According to the customs authorities, the said Hypalon-40 was tested in the Custom House Chemical Tests Laboratory and it was found that it was in the form of white irregular lumps; that it was essentially composed of a saturated synthetic organic polymer .and that it did not conform to the definition of synthetic rubber as given in Note 4 of the Notes under Chapter 40 of the 1st Schedule to the Customs Tariff Act, 1975. Reference was also made to Tariff Advice No. 17 of 1974 where Hypalon has been suggested to be treated as plastic material in certain exemption notifications issued by the Customs authorities; Hypalon and been described as goods falling under Chapter 39. It was also described as resin in the compendium of classification of opinions issued by the Directorate of Statistics & Intelligence (Central Excise & Customs), New Delhi as synthetic resin, covered by Chapter 39 of the Customs Tariff Act, 1975. Thus, according to the appellants herein, Hypalon-40 was assessable as synthetic resin under Chapter 39 of the Customs Tariff Act, 1975 and not under Chapter 40 thereof as synthetic rubber, as claimed by the respondent herein.;