MOHAN MEAKIN LTD Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) LEARNED Consultant, Shri K.L. Rekhi prays for waiver of pre -deposit and stay of recovery of Rs. 1,47,141/ - demanded as duty on the Article "Kleenmold 170" described by the appellants on the basis of technical literature of the supplier as an across -the -line universal glass mold lubricant. The classification sought for the purposes of countervailing duty by the appellants is under 2710.60. The authorities below have classified the same under TSH 2710.99 as "others". Learned consultant submits that the product has been described clearly in the leaflet as lubricant. It satisfies the definition given for the lubricant oil under TSH 2710.60. He also points out that there is a direct judgment of the Tribunal in the case of Collector of Customs v. Empire Industries reported in 1990 (50) E.L.T. 426 which classifies the product, glass mold lubricant under TSH 2710.60 and extends the benefit of the Notification No. 112/87, as it then existed. Learned consultant therefore, prays for allowing the stay petition. He also prays for deciding the appeal itself on the basis of the aforesaid submissions inasmuch the lower appellate authority has not applied its mind by going into the said submissions and has merely dismissed the appeal of the appellant herein before it for non -deposit of the demand of duty under Section 129E of the Customs Act.

(2.) OPPOSING the contentions, learned JDR, Shri S.K. Das submits that it is a glass mold release oil and not a lubricant. HSN makes a distinction between a lubricant oil and a glass mold release oil. He draws the attention to the relevant HSN Headings and the Explanatory Notes thereunder. He also submits that the judgment of the Tribunal does not apply in the present case because the controversy in that case was different, relating to the extension of benefit of Notification No. 112/87. This has been correctly pointed out by the adjudicating authority in the order -in -original. Learned JDR, therefore, submits that the appellants/applicants do not have a prima facie case. Hence, he prays for dismissal of the stay petition.

(3.) WE have carefully considered the pleas advanced from both sides. We observe from the literature of the supplier that it has been described as 'lubricant oil', may be for the purpose of release of glass molds. The distinction made in the HSN is of no avail because the Central Excise Tariff has specifically defined the lubricant oil as any oil which is ordinarily used as a lubricating oil and which has flash point not below 90C. There is no dispute regarding the flash point on the basis of the supplier's literature and which is not disputed by the authorities below that it is used for the purpose of easy removal of the glass molds. Therefore, the purpose is clearly lubricant; it may not be for the purpose of lubricating machines as such but the lubrication effect is clearly there and this is also clear from the technical literature. There is also the direct judgment, as rightly pointed out by the learned Consultant. Consequently, we are of the view that the appellants/applicants have a good prima facie case in their favour. Hence, we allow the stay petition unconditionally. However, we do not accept the learned Consultant's prayer at this stage that the appeal be allowed straightaway.