Holding

An adjudicating authority may obtain expert opinions and conduct tests without disclosing them to the assessee, provided the findings are not relied upon; consequently, no violation of natural justice or Rule 56 occurred and the products are correctly classified under SI No.42.

Summary

Noble Synth Ltd, a small-scale manufacturer of acrylic polymers, initially classified its products under SI No.42 of Notification No.53/88 (40% duty) and later claimed a clerical error to re‑classify them as emulsions under SI No.9 (20% duty). The revised classification was approved, but a show‑cause notice alleged collusion and imposed differential duty, a penalty of Rs.10 lakh and confiscation of plant. The Collector confirmed these demands; the Tribunal reduced the penalty to Rs.5 lakh and dismissed the appeal. The appellant argued that the Collector had secretly forwarded its technical opinions to the Deputy Chief Chemist, obtained test reports without disclosure, and suppressed them, violating Rule 56 and natural justice. The Supreme Court held that the adjudicating authority may seek expert opinions and conduct tests without informing the assessee, provided the report is not relied upon, and therefore no breach of natural justice or Rule 56 occurred. The Court affirmed that the Department discharged its onus and the products fall under SI No.42, not SI No.9, and dismissed the appeal.

Issues considered

The Collector’s forwarding of the appellant’s technical opinions to the Deputy Chief Chemist without informing the appellant violates principles of natural justice and Rule 56 of the Central Excise Rules.
The non‑supply of the Deputy Chief Chemist’s test report, when not relied upon by the adjudicating authority, amounts to a breach of natural justice or Rule 56.
Whether the appellant’s products should be classified under SI No.9 (emulsions) or SI No.42 (acrylic polymer resin in primary form) of Notification No.53/88.
Whether the Department discharged its onus of proof regarding the correct classification of the products.
Whether the penalty and confiscation imposed by the Collector were justified.

Legislation cited

Central Excise Act, 1944s. 11A
Central Excise Rules, 1944s. 173B(4), s. 173Q(2), s. 56
Central Excise Tariff Act, 1985

Subjects

central exciseclassification of goodsnatural justiceRule 56technical opinionburden of proofpenaltyconfiscationproduct classificationcollusion

Judgment

MIS. NOBLE SYNTHETICS LTD. A
v.
COLLECTOR OF CENTRAL EXCISE, BOMBAY

MARCH 17, 2005

[S.N. VARIAVA, DR. AR. LAKSHMANAN AND S.H. KAPADIA, JJ.] B

Central Excise Act, 1944-Section 11 A-Central Excise Rules, 1944-
Rules 56, 1738 and 173Q--Central Excise Tariff Act, 1985-Chapter Sub-
heading 3906. 90 :
c
Re-classification of products-Power of the adjudicating authority-
Assessee submitting technical opinions of Professors in support of its plea for
re-classification-Adjudicating authority, without intimating the assessee,
forwarding the opinions to Dy. Chief Chemist of the Department for his
opinion-Held : The a/legation that the adjudicating authority forwarded the
D'
technical opinions to the Dy. Chief Chemist behind the back of the assessee
is not tenable-The adjudicating authority has power to make such enquiries
as necessary for adjudicating the given case.

· Re-classification ofproduct~-On request of the adjudicating authority,
Dy. Chief Chemist of the Department submitting test report on assessee 's E
products -Non-supply of the report to assessee-Held : Did not amount to
violation of the principles of natural justice or of R.56 as alleged, since the
adjudicating,authority while holding against the assessee by disallowing re-
classification, did not rely on the said test report.

Re;classification of products-Department discharged its onus to show F
that the acrylic polymers manufactured by assessee were acrylic polymer
resin in primary form falling under SI. No. 42 ofthe Schedule to the Notification
No. 53188-They cannot be re-classified as emulsions falling under Sr. No. 9
of the Schedule to the said Notification-Tribunal was right in rejecting the
technical opinions submitted by assessee in support of its plea for re-
classification. G
Appellant-assessee is a small scale unit engaged in manufacture of
various grades of acrylic polymers. It filed classification lists classifying
the aforesaid products as acrylic polymers in primary form under Chapter
sub-heading 3906.90 claiming concessional rate of duty@ 40% ad valorem
1003 H
1004 SUPREME COURT REPORTS [2005] 2 S.C.R.

A in terms of SI. No. 42 of the Schedule to the Notification No. 53/88 dated
1-3-1988. But, subsequently claiming that there was a clerical error in
filing the earlier classification lists, appellant filed a revised classification
list seeking classification of the products as emulsions subject to rate of
duty @ 20% ad valorem in terms of SI. No. 9 of the Schedule to the
B Notificiation No. 53/88.

The revised classification list was approved by the Assistant
Collector. However, subsequently a show-cause notice was issued to the
appellant alleging that the revised classification list was not in accordance
with the circumstances as stated in Rule 173 B (4) of the Central Excise
C Rules, 1944. The show-cause notice alleged collusion between the Assistant
Collector, who approved the revised classification list and the appellant
·and further proposed to demand a differential duty by invoking the
extended period of limitation under proviso to Section 1 lA of the Central
Excise Act, 1944. A proposal was also made to confiscate the land, building,
plant and machinery under Rule 173 Q (2) of the Rules. The Collector
D adjudicated the show-cause notice confirming the demand of differential
duty and a penalty of Rs. 10 lacs. Building, land, plant and machinery
were also confiscated. Tribunal dismissed the ~ppeal, but reduced the
penalty from Rs. 10 lacs to Rs. 5 lacs. Hence the present appeal.

In appeal to this Court, it was inter alia contended that in support
E of its claim for re-classification, the appellant had produced technical
opinions of Professors before the Collector; that the Collector had behind
the back of the appellant forwarded those opinions to the Dy. Chief
Chemist of the Department for his opinion and had also requested for test
results of the appellant's products; that the action of the Department in
F suppressing the test results of the appellant's products is in direct breach
of Rule 56 whereunder the Department is bound to communicate the
results of all tests to the manufacturer; that the principles of natural justice
were also violated and the assessee was denied its right to fair hearing and
an opportunity to rebut the Department's evidence; and that the Tribunal
failed to appreciate that collusion being a serious offence, the burden of
G proof 8hould have been strictly discharged by the Department, which the
Department has failed. to do.

Dismissing the appeal, the Court

HELD: 1. The appellant had produced technical opinions of
H Professors of I.I. T., Bombay and the Department of Chemical Technology,
NOBLE SYNTHETICS LTD. v. C.C.E. 1005
University of Bombay. Since the Collector required certain clarifications A
on the opinions, he forwarded the same to the Deputy Chief Chemist for
his opinion. Seeking the views of the Deputy Chief Chemist by any stretch
of imagination carmot be a matter for finding fault with. There is nothing
wrong in this. It is always legally permissible for the adjudicating
authorities to make such enquiries as are necessary for adjudicating the B
case. Thus, it cannot be alleged that the Collector has forwarded the
opinions to the Deputy Chief Chemist behind the back of the appellant.
(1012-D-F)

2.1. The Deputy Chief Chemist carried out certain tests and
forwarded his report to the Collector indicating that the composition of C
ingredients used and process of manufacture given were different from
what had been forwarded earlier to the laboratory along with the test
memo. Since the products themselves were different and the report
inconclusive, the adjudicating authority did not deem it fit to rely on the
report or supply a copy of the test report on the samples sent to the
chemical examiner. As the report given by the Chief Examiner has not D
been relied upon by the adjudicating authority in arriving at the findings,
there is no violation of any principles of natural justice as has been rightly
held by the Tribunal. This apart, there is no question of any suppression
from the appellant since the test results of the Deputy Chief Chemist were
not relied upon by the Department. The findings were absolutely E
independent of the test report. Therefore, it is futile to contend that there
is breach of Rule 56. There is no breach of the said rule due to non-reliance
by the Department on the test report and, therefore, the application of
the above rule would be there only in case of reliance on the test report
by the Department. (1012-G-H; 1013-A-B]
F
2.2. In any case, throughout the proceedings of the case, the
appellants have failed to submit any cogent evidence or arguments against
the opinion of the Deputy Chief Chemist. The Tribunal has clearly clarified
this point in its judgment. Therefore, the impugned order is not in violation
of the principles of natural justice as alleged by the appellant. (1013-C)
G
3. It is also denied by the respondent that the opinion was not
considered by the Tribunal which is clear from their statements relied on
by the Tribunal. On the other hand, the evidence relied upon by the
adjudicating authority is based on commercial parlance as the product is
understood by the appellant's own technical experts from its production,
H
1006 SUPREME COURT REPORTS [2005] 2 S.C.R.

A planning and purchase departments and also by their customers. The
Tribunal has, therefore, rightly rejected the technical opinion submitted
by the appellant. 11013-D-E)

4.1. The arguments on the revised classification list cannot also be
accepted and is only an afterthought. The Tribunal has rightly rejected
B the contentions of the appellant on principles of natural justice, non-supply
of test report. The facts and circumstances as narrated in the records
clearly go to show that there was an apparent collusion between the
Assistant Collector and the appellant. There was no substantial reason for
the appellant to file the revised classification list when they had already
C filed three classification lists and got the higher rate approved. [1013-F-G)

4.2. The findings of the Collector and of the Tribunal are based on
merits of the case. The Department had discharged its onus to show that
the product in question is acrylic polymer resin in primary form.
Therefore, the products in question are not covered by sl. No. 9 of
D notification No. 53/88-CE but would be covered by sl. No. 42 of the
schedule to the said notification. (1014-A-B)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7103of1999.

From the Judgment and Order dated 17 .8.99 of the Central Excise,
E Customs and Gold (Control) Appellate Tribunal, New Delhi in F.O. No. 821/
99-C in A.No. E/4487 of 1993-C.

Rajiv Dutta, Nimish Kothare, Uday Kumar, S.Beno Bencigar and R.
Nedumaran with him for the Appellant.

F R. Venkataramani, Hemant Sharma, Ashok Panigrahi and B.K. Prasad
with him for the Respondent.

The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. The above appeal was filed against the
G final order No. 821 /99-C dated 17.08.1999 passed by the Customs, Excise &
Gold (Control) Appellate Tribunal, New Delhi (hereinafter called "the
Tribunal") in Appeal No. E/4487/93-C.

The appellants are a small-scale unit engaged in the manufacture of
various grades of acrylic polymers, namely, Synocure 867S, Synocure 823S,
H Synocure 862X and Synocure 868. The appellants had filed three classification
NOBLE SYNTHETICS LTD. v. C.C.E. [LAKSHMANAN, .I.] 1007

lists bearing No. I /90-91 dated 03.04.1990, 4/90-9 l dated I 0.04.1990 and 61 A
90-91 dated 05.06.1990 respectively classifying the aforesaid products as
acrylic polymers in primary form under Chapter Sub-heading 3906.90 of the
first schedule to the Central Excise Tariff Act, 1985 claiming concessional
rate of duty @ 40% ad valorem in terms of Sr. No. 42 of the schedule to the.
notification No. 53/88 dated 01.03.1988. The appellants, vide their letter B
dated 11. l 0.1990, addressed to the Assistant Collector submitted that there
was a clerical error in filing the aforesaid classification lists and the correct
rate of duty should have been @ 20% ad valorem in terms of Sr. No. 9 of
the schedule to the notification No. 53/88 dated 01.03.1988. The appellants
also filed a revised classification list No. 9/90-91 dated 17. l 0.1990 in respect
of the above products. In the revised classification list Sr. No. 9 to the C
notification 53/88 dated 0 l .03.1988 was claimed contending that the products
are emulsions.

The revised classification list filed by the appellants on 17. l 0.1990 was
approved by the jurisdictional Assistant Collector on 25.10.1990 i.e. within
a period of 8 days. The appellants declared the above products as emulsions D
in their revised classification list with intent to avail the lower concessional
rate of duty @ 20% ad valorem.

A show-cause notice dated 03.01.1992 was issued to the appellants
alleging that the revised classification list was not in accordance with the
circumstances as stated in Rule 173 B (4) of the Central Excise Rules, 1944. E
The show-cause notice alleged collusion between the Assistant Collector,
who approved the revised classification list on 25. l 0.1990 and the appellants.
The show-cause notice further proposed to demand a differential duty of Rs.
9,95,928 for the period 27.10.1990 to 04.12.1991 by invoking the extended
period of limitation under proviso to Section l lA of the Central Excise Act, p
1944. A proposal was also made to confiscate the land, building, plant and
machinery under Rule 173 Q (2) of the Rules.

The Collector of Central Excise, Bombay-Ill adjudicated the show-
cause notice vide order dated 19.05.1993 confirming ·the demand of Rs.
9,95,928 and a penalty of Rs. I 0 lacs. The building, land, plant and machinery G
were also confiscated with an option to redeem the same on payment of Rs.
5 lacs.

Being aggrieved by the order of the Collector of Central Excise, the
appellants filed an appeal before the Tribunal, which disposed of the said
appeal vide its final order dated 17.08.1999 modifying the impugned order HI
1008 SUPREME COURT REPORTS [2005] 2 S.C.R.

A in original to the extent of reduction of penalty from Rs. 10 lacs to Rs. 5 lacs.
Being aggrieved by the above order of the Tribunal, the appellants have filed
the present civil appeal before this Court.

We heard Mr. Rajiv Dutta, learned senior counsel appearing for the
appellant and Mr. R. Venkataramani, learned senior counsel appearing for
B the sole respondent. We have also perused the orders passed by the authorities
and also of the Tribunal, opinion of the.experts and the enclosures filed along
with the appeal. Mr. Rajiv Dutta, leaned senior counsel appearing for the
appellant, invited our attention to the relevant pleadings -and the orders
impugned in this appeal made the following submissions : -
c (a) In the course of the proceedings before the Collector of Central
Excise, the appellant had produced the technical opinions of
Professors of the Indian Institute of Technology, Bombay and the
Department of Chemical Technology, University of Bombay. The
Collector had behind the back of the appellant forwarded these
D opinions to the Deputy Chief Chemist of the Central Excise
Collectorate for his opinion and also requested certain tests to be
carried out on the samples of the appellant's products, reports of
which were required to be submitted to the Collector. In pursuance
of this request, the Deputy Chief Chemist carried out certain tests
on the appellant's products and forwarded his report to the
E Collector under his letter dated 13.03.1992 and also submitted his
opinion on the technical opinions produced by the appellant.
According to learned senior counsel, the appellant was kept in the
dark of the test resu Its of the products and also of the op in ion of
the Deputy Chief Chemist on the technical aspect, right through
the proceedings before the Collector. It was only when the matter
F
came up before the Tribunal in appeal, the Tribunal suo motu
directed the Department to produce the test reports of the
appellant's products in its order dated 08.02.1999. Thereafter, the
Department filed copies of its reports, inspection of which was
given to the appellant's in August, 1999;
G
(b) On taking inspection, the appellant's were shocked to see for the
first time that :

(i) The Collector, as borne out by his letter No. F. VIAdj(l 5)
SCN-205/91/BJII dated 20.7.1992 had submitted the expert
opinions filed by the Appellant to the Deputy Chief Chemist
H
NOBLE SYNTHETICS LTD. v. C.C.E. [LAKSHMANAN, J.] l 009

for his opinion and requested for the test results of the A
Appellant's products, which fact was suppressed from the
Appellant at all material times.

(ii) In pursuance of this request the Deputy Chief Chemist by
his letter dated 13th March, 1992 addressed to the Collector
had submitted his results and also had rebutted the technical B
opinions produced by the appellant, which fact too has been
suppressed from the appellant at all material times.

(iii) That the Collector has followed the findings of the Deputy
Chief Chemist in his order dated 19.5.1993 and held against
the appellant. C
(iv) The action of the Department in suppressing the test results
of the appellant's products is also in direct breach of the
provisions of Rule 56 of the Central Excise Rules whereunder
the Department is bound to communicate the results of all
tests to the manufacturer and the manufacturer has the right D
to request for a re-test within 90 days. As these test reports
were never communicated by the Collector to the appellant
they have been denied their statutory right of a re-test as
provided by the said Rules.

(c) The appellant on becoming aware of the aforesaid facts filed their E
affidavit dated 14.08.1999 placing these facts on record and
requested the Tribunal to set aside the order of the Collector as
being in breach of the principles of natural justice and of Rule 56.
A hearing was held before the Tribunal on 17 .08.1999 when
relevant submissions were made in that behalf. The Tribunal, F
however, by its impugned order brushed aside the preliminary
contention of the appellant by observing as follows :

"We are inclined to agree with the learned SOR that non-
supply of test report; which is adverse to the appellants, has
not been referred to in the Show Cause Notice and which G
has not been relied upon by the adjudicating authority in
arriving at its findings, does not lead to violation of any
principles of natural justice.''

(d) That the said order amounts to grave travesty of justice and is
grossly unconscionable and that the test reports could not have H
1010 SUPREME COURT REPORTS [2005] 2 S.C.R.

A been referred to in the show-cause notice as the show-cause notice
has been issued earlier on 03 .0 l.l 992 while the request by the
Collector to the Deputy Chief Chemist was made later as borne
out by letter dated 20.07 .1992 of the Collector;
(e) That the principles of natural justice require a complete disclosure
B of all evidence on record to the assessee and the impugned order
is clearly in breach of the principles of natural justice and has
denied the appellant their right to a fair hearing;
(f) Once an adjudicating authority refers certain evidence produced
by the assessee for the technical opinion of the Deputy Chief
c Chemist of the Department, he is bound. by the principles of
natural justice to furnish the Deputy Chief Chemist's report to the
assessee. The assessee would then have an opportunity to rebut
the Department's evidence;
(g) The proceedings before the Collector are quasi judicial in nature.
D A complete disclosure of all material before the Collector has to
be made to the assessee who is entitled to notice of the same and
no evidence can be sought to be collected behind the back of a
party as the same results in a denial of a fair hearing;
(h) The impugned order is also bad on merits as it totally ignores and
fails to appreciate that the products manufactured by the appellant
E
are of highly technical nature and that the commercial parlance
test would not apply in the given case; '' /
(i) The opinion of the Deputy Chief Chemist in respect of the technical
opinion as well as the test report is adverse to the appellant, so
also is the order passed by the Collector. The said adverse evidence
F
was admittedly before the Collector when he passed his order and
the same was deliberately kept back from the appellant. It was
submitted that the impugned order can create a totally wrong and
dangerous precedent in law inasmuch as it seeks to pennit an
adjudicating officer to obtain vital evidence on the subject matter
G of a dispute and refuse to disclose it to the assessee simply by not
referring to it specifically in the adjudication order. Moreover, it
seeks to permit an adjudicating officer to obtain test results of the
assesse's products behind his back and not reveal the same to
them.
-
H U) The impugned order is also in gross and direct breach of Rule 56

'
NOBLE SYNTHETICS LTD. v. C.C.E. [LAKSHMANAN, J.] 1011

of the Central Excise Rules which embodies the principles of A.
natural justice. Under Rule 56(2) the test results of all tests
conducted are required to be communicated to the manufacturer
and by virtue of Rule 56(4) where the manufacturer is aggrieved
by the result of the test, he may within 90 days request for the
samples to be re-tested. In the instant case, the appellant has been B
denied their statutory right of being informed of the test results
and also of a request for a re-test;
(k) On merits, it was submitted that the Tribunal failed to consider
the appellant's su5missions that the respondent erred in ignoring
the overwhelming technical evidence, supporting the facts that
the products in question is liable to duty as provided by SI. No. C
9 of the schedule to the Government oflndia Notification No. 53/
88 dated 01.03.1988. The Tribunal also failed to consider that the
Department had not produced an iota of technical evidence
contrary to the experts opinion on the products. The Tribunal
further failed to appreciate that collusion being a serious offence, D
the burden of proof should have been strictly discharged by the
Department, which the Department has failed to do.

The learned counsel prayed to reverse the order passed by the Tribunal
to the extent it dismisses the appellant's appeal.
E
Mr. R. Venkataramani, learned senior counsel for the sole respondent
in reply to the arguments advanted by learned senior counsel for the appellant
submitted that the order passed by the Tribunal dismissing the appeal filed
I by the appellant herein is in order and is unassailable and that it is legally
permissible for the adjudicating authorities to make such enquiries as are
necessary for adjudicating the case and thus it cannot be alleged the Collector F
had forwarded the opinion to the Deputy Chemist behind the back of the
..... appellant's. He reiterated the other contentions raised before the lower
authorities.

In the above ba«kground of facts, the issue in the present matter is
whether the appellant's products fall und.er SI. No. 9 or SI. No 42 of Exemption G
Notification No. 53/88 dated 01.03.1988. The said entries are as fo)lows :

H
1012 SUPREME COURT REPORTS (2005) 2 S.C.R.

A Serial No. 9

3905.10 or Homopolymer and copolymer resin emulsions 20% ad
3906.90 based on acrylic and/or vinyl monomers valorem
3905.10 or
B
Serial No. 42

39.01 to 39.15 All goods other than polyurethane's falling 40% ad
under Sub-heading No. 3909.60, waste, valorem
C parings and scrap of flexible polyurethane
foam falling under heading No. 39.15 and
polyvinyl chloride of paste grade or battery
grade falling under heading No. 39.04

In the above case, the appellant's had produced technical opinions of
D Professors of 1.1.T., Bombay and the Department of Chemical Technology,
University of Bombay. Since the Collector required certain clarifications with
regard to the above opinions, he forwarded the same to the Deputy Chemist
for his opinion. The Collector also requested for tests to be carried out on the
samples of the appellant's products seeking all the clarifications with regard
to the opinions of professors without the knowledge of the appellant is
E challenged by the appellant as violative of principles of natural justice. In our
view, seeking the views of the Deputy Chemist by any stretch of imagination
cannot be a matter for finding fault with. There is nothing wrong in this. It
is always legally permissible for the adjudicating authorities to make such
enquiries as are necessary for adjudicating the case. Thus, it cannot be alleged
F that the Collector has forwarded the opinions t? the Deputy Chemist behind
the back of the appellant.

Pursuant to the above request; the Deputy Chemist carried out certain
tests and forwarded his report to the Collector vide his letter dated 13.03.1992.
In the said letter, it was indicated that the composition of ingredients used
G and process of manufacture given were different from what had been forwarded
earlier to the laboratory along with the test memo. Since the products
themselves were different and the report inconclusive, the adjudicating
authority did not deem it fit to rely on the report or supply a copy of the test
report on the samples sent to the chemical examiner. It is seen from the
records that the Tribunal on its own directed the Department to produce the
H
NOBLE SYNTHETICS LTD. v. C.C.E. [LAKSHMANAN, J.] 1013

- test report of the appellant's product vide order dated 08.02.1999. As the A
report given by the Chief Examiner has not been relied upon by the
adjudicating authority in arriving at the findings, there is no violation of any
principles of natural justice as has been rightly held by the Tribunal. This
apart, there is no question of any suppression from the appellant since the test
results of the Deputy Chief Chemist were not relied upon by the Department.
The findings were absolutely independent of the test report. Therefore, it is B
futile to contend that there is breach of Rule 56. In our view, there is no
breach of the said rule due to non-reliance by the Departments by the test
report and, therefore, the application of the above rule would be there only
in case of reliance on the test report by the Department. It is also pointed out

- that, in any case, through out the proceedings of the case, the appellants have C
failed to submit any cogent evidence or arguments against the opinion of the
Deputy Chief Chemist. The Tribunal has clearly clarified this point in its
judgment. We, therefore, hold that the impugned order is not in violation of
the principles of natural justice as alleged by the app.:llant.

It is also denied by the respondent that the opinion was not considered D
by the Tribunal which is clear from their statements relied by the Tribunal.
On the other hand, the evidence relied upon by the adjudicating authority is
based on the commercial parlance as the product is understood by the
appellant's own technical experts from its production, planning and purchase
departments and also by their customers. The Tribunal has, therefore, rightly E
rejected the technical opinion submitted by the appellants. Mr. Rajiv Dutta
submitted that the revised classification list is based on clerical error in the
old classification list. The arguments on the revised classification list cannot
also be accepted. This submission is only an afterthought. Therefore, in our
opinion, the Tribunal has rightly rejected the contentions of the appellant on
principles of natural justice, non-supply of test report. We are also inclined F
to agree with the submission of learned senior counsel for the Department.
The facts and circumstances as na~ated in the records clearly go to show that
there was an apparent collusion between the Assistant Collector and the
appellant's. There was no substantial reason for the appellant to file the
classification list on 17 .10.1999 when they had already filed three classification G
lists and got the higher rate approved. The Tribunal having regard to the
overall facts and circumstances of the case was of the view that the penalty
imposed is very harsh and, therefore, reduced the penalty from Rs. 10 lacs
to Rs. 5 lacs. However, the Tribunal refused to interfere with the quantum of
fine imposed on the appellant in view of the confiscation of the plant,
machinery etc. H
1014 SUPREME COURT REPORTS (2005] 2 S.C.R.

A The findings of the Collector and of the Tribunal are based on merits
of the case. The Department had discharged its onus to show that the product
in question is acrylic polymer resin in primary form. We are also, therefore,
satisfied that the products in question are not covered by sl. No. 9 of
notification No. 53/88-CE but would be covered by sl. No. 42 of the schedule
B to the said notification. The appeal stands dismissed. No costs.

B.B.B. Appeal dismissed.

-

--