Civil Appeal Nos
392 95 of 1988
Appeal under Section 130Eb of the Central Excise and Salt Act 1944 from the order dated 15121986 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal Nos
C2130 to 213286 C  102783 and order No 757 76086
B Datta ASG Mrs Indira Sawhney and P Parmeshwaran for the Petitioners
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These appeals under Section 643 130Eb of the hereinafter called the Act are against the order dated 15th December 1986 passed by the Customs Excise and Gold Control Appellate Tribunal hereinafter called CEGAT
These appeals are related to a dispute regarding the duty of custom imposed on the respondent
The department had levied duty on the product known as Sancticizer 429  imported by the respondent
The respondent had contested this duty and filed a claim for the refund
The Assistant Collector of Customs rejected this claim
The Assistant Collector on test found it to be organic compound easter type inform of colourless viscose liquid and as per 70046m should be considered as polymeric plasticizer
The Appellate Collector found that Chapter 38 of the was residuary in nature
According to him if the item was not covered by any other chapter of the then it would fall under Chapter 38
The Appellate Collector further found that linear polysters were covered by CCCN 3901E
The Appellate Collector held that the impugned goods are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the poly condensation product of terphthalic acid or Adipic acid with ethanediel covered by above mentioned CCCN headings
The Appellate Collector held this CCCN headings corresponds to 390106 of the 
The Appellate Collector upheld the decision of the Assistant Collector
The respondent challenged the aforesaid order of the Appellate Collector before the Tribunal
The Tribunal allowed the appeals relying on the two decisions of the Tribunal one being Bhor Industries Ltd vs Collector of Customs Bombay and the other Collector of Customs Bombay vs Bhor Industries Ltd and another The Tribunal was of the view that the product was classifiable under the heading 3801196 of the 
The decision of the Tribunal was later on followed by the subsequent decision referred to hereinbefore
In Bhor Industries Ltd vs Collector of Customs Bombay supra the Tribunal observed that these are ordinarily liquids and in rare instances solids as simple high boiling solvents for the polymers
These are neither resins nor do they seem to be plastic materials on the other hand these are added to resins to impart better flexibility or plastic properties to them
It was further observed that there was no evidence had been produced before the Tribunal to show that Sancticizer was a resin or plastic material as defined in Explanatory Notes to CCCN
It was neither similar to resols or polysiobutylene to attract the mischief of Note 2c to Chapter 39 nor a separately defined Chemical Compound so as to fall within Chapters 28 or 29 of 644 
Hence it was classifiable not under Heading 390106 as it stood before its amendment in 1978 but under 3801196 of as plasticizer not elsewhere specified
The Tribunal in its decision considered the technical leaflet on the product
Sancticizer 429 was described as a medium high molecular polyester plasticizer made from a glycol reacted with a dibasic acid
Among the properties claimed for the product are good low temperature flexibility excellent electrical properties outstanding migration resistance humidity stability and resistance to oil and solvant extraction
It is said to be an excellent plasticizer for making oil resistant high temperature PVC wire and cable compounds
It is also stated to be useful for plasticizing ethyl cellulose mitrocellulose acrylic caulking compunds and adhesive systems based upon polyvinyl accetate styrene butadiene and acrylic latices
Reference was also made to Kirk othmer s Encyclopaedia of Chemical Technology 3rd edition page 111 where it was observed as follows A plasticizer is incorporated in a material to increase its workability flexibility or distensibility
Addition of a plasticizer may lower the melt viscosity the second order transition temperature or the elastic modulus of the plastic
For effectiveness with polymeric materials a plasticizer needs to be initially mixed with the polymer either by dissolution of the resin in the plasticizer or the plasticizer in the resin by heat or dissolving both in a common solvent and subsequent evaporation of the solvent
In Plastics materials 4th edition page 80 JA Brydson refers to plasticizers ordinarily liquids and in rare instances solids as simply high boiling solvents for the polymer
The action is explained by saying that plasticizer molecules insert themselves between polymer molecules reducing but not eliminating polymer polymer contacts and generating additional free volume also as some interaction between polymers and plasticizers off setting the spacing effect or both
 The Tribunal came to the conclusion that plasticizers were not resins these are added to resins to impart better flexibility or plastic properties to the latter
Nor did they seem to be plastic materials by themselves
The Tribunal found that Sancticizer 429 which is admitedly a plasticizer would therefore not have fallen for classification 645 under Heading No 390106 of the Customs Tariff Schedule as it stood prior to its amendment in 1978
The said reasoning was reiterated by the Tribunal in the decision of Collector of Customs Bombay vs Bhor Industries Ltd and another
There the Tribunal observed that as per various technical authorities plasticizers are not resins
Rather these are added to resins to impart better flexibility or plastic properties to them
These are not plastic materials by themselves either
Further goods under reference are not similar to resols or polysiobutylenes
Therefore their classification under Heading 3001106 of the  prior to and even after its amendment in 1978 should not be applicable
Furthermore not being separately defined chemical compounds these would also not fall within Chapter 28 or 29 of the Act
Since these are not specified elsewhere their appropriate classification would be under Heading No 3901196 as Plasticizers not elsewhere specified
It is well settled in these matters how a good is known in the trade and treated in the trade literature is relevant and significant and often decisive factor
In that view of the matter the Tribunal was right in the view it took
These appeals fail and are accordingly dismissed
NVK Appeals dismissed


Summary:
The appellant was granted a permanent Commission in the Indian Army in 1958 and appointed as a Second Lieutenant
He rose to the level of Lt Colonel on 27th February 1975
In March 1976 he was directed to report to the Military Hospital for his psychiatric examination where his medical classification was reduced from shape I to shape III and he was posted as GLO and treated as Major
There was however no specific order reducing him in rank
In December 1976 appellant s Classification was upgraded to shape II and in September 1977 to shape I
But it was decided that he should be subjected to special review before restoration of his rank
In a special report the Brigade Commander recorded appreciation of the appellant s work and recommended his promotion as Lt Colonel
But the Army Headquarters directed the appellant to the Military Hospital for further examination on the ground that an earlier incident of 1963 had been overlooked when the appellant was graded as shape I
On this examination the appellant was permanently downgraded as shape II
In 1980 the appellant filed a writ petition in this Court challenging the action of Army Headquarters and his downgrading
This Court directed that he should be restored to the rank of Acting Lieutenant Colonel from the date he was reverted and that his claims to advancement pay arrears of pay etc should be considered and disposed of within six months See After lodging his claims the appellant waited for a reasonable time and then filed a writ petition in the High Court
The respondent contended that there was nothing wrong in the recategorisation and the directions of the Supreme Court had been fully complied with
The High Court dismissed the writ petition
647 In this appeal by special leave the appellant contended that a prejudicial approach developed against him in the Headquarters establishment without any justification and he had been unduly subjected to psychiatric examination from time to time and on the basis of the records built up against him adverse opinion had been forthcoming which resulted in recategorisation from shape I to shape II
To remove the apprehension of bias this Court directed that the appellant may be examined by a Board consisting of three Experts with an outsider as Chairman
After considering the report of the Experts Committee this Court allowed the appeal in part and  HELD 1
The appellant s medical category shall be taken as being continued to be shape I from 1977 and on that basis his promotional entitlements shall be finalised by the respondents within three months hence
It is open to the respondents to release the appellant from service after this has been done
655F 2
The report of the Expert Committee makes it clear that there was no justification for the appellant to be subjected to psychiatric test in 1978 following which he was recategorised as shape II
654G 3
This subject of categorisation on the basis of psychiatric test is technical and should ordinarily be left to experts available in the Defence Department and the guidelines indicated by the Department should be followed
This Court has no intention to disturb the discipline of the Defence Department but on the basis of material available on the record and on the basis of the report of the Committee of Experts the appellant is entitled to limited relief
Though there was no order reducing him from the rank of Acting Lieutenant Colonel to Major he was treated as having been so reduced
Then followed the frequent psychiatric examinations without any real justification
This recategorisation in these circumstances was without any justification
654H 655A B Reiterating that it would like the discipline of the Defence Department to be maintained by itself in the interest of the nation this Court observed that this case may not be taken as a precedent 655F G