1. The Collector (Appeals), Bombay by his order No. 1067/90 BCH, dated 12-7-1990 has rejected the appellants' claim of benefit of Notification No. 37/89-Cus., dated 1-3-1989 in respect of imported goods "ALUMINIUM OXIDE SYNTHETIC". The appellants claimed assessment at the ex-bond stage for concessional rate of duty under the said notification. The said notification grants exemption to Synthetic Aluminium Oxide imported into India for manufacturing grinding wheels and other abrasive products in excess of basic customs duty of 40% ad valorem.
2. The appellants are said to be a small scale unit, inter alia engaged in the manufacture of polishing compositions for which, the appellants use aluminium oxide synthetics as one of the raw-materials. They contend that the product manufactured by them with this imported item is also an abrasive product as shown in the literature relied on by them. They contend that the term "abrasive" is something that is used for wearing down or smoothening a surface. They contend that the cutting and polishing efficiency combined together with hardness in the imported item, makes the polishing bar more effective and suitable for surface smoothening cutting and polishing the metals. They further contend that they convert the imported item into cake form by adding some binders for the convenience of their consumers, as the item cannot be used directly in powder form on the polishing wheel for effective cutting and polishing results. They rely on the manufacturer's literature which states that 40% of aluminium oxide synthetic and 30% of binders will convert into effective substance polishing media. The definition of aluminium oxide as per their manufacturer is : "Calcined aluminas are increasingly used as a basic material for polishing media and abrasives for the surface treatment of ferrous and non-ferrous metals, plastics, marble, granite and semi-precious stones. They are offered by our company under the designation 'Polishing Aluminas'. The advantages of calcined alumina as a synthetic product are the constant chemical and physical property in comparison with the classic natural polishing products such as pumice and chalk stones, tripoli powder, emery, etc. Polishing aluminas have a high degree hardness, and in this respect can be corporated into the Mohs' hare scale only one degree below diamond." 3. They contend that the words used in the said notification are "abrasive products". They contend that this term should be taken to mean all products which are used for abrasion. They also rely on the terms "abrasive" and "abrasion" as defined in Me Graw Hill Dictionary of Scientific and Technical Terms (II Edition Page-3) which is reproduced below : "abrasive : (MATER) 1. A material used, usually as a grit sieved by a specified mesh but also as a solid shape or as a paste or slurry or air suspension, for grinding, honing, lapping, superfinishing, polishing, pressure blasting, or barrel tumbling. 2. A material sintered or formed into a solid mass such as a hone or a whell disk, cone, or burr for grinding or polishing other materials. 3.
"abbrasion : (ENG) The removal of surface material from any solid through the frictional action or another solid, a liquid or a gas or combination thereof." 4. They contend that the term "Abrasive products as used in the said notification, are descriptive in nature and the word is used as an adjective. They contend that the polishing composition manufactured by them are bonded abrasive which also performed the functions of grinding, honing, super finishing. All these functions are those of an abrasive product. The words "abrasion" and "abrasive" are generic in nature and it covers smoothening, cutting, polishing of metals.
5. The Assistant Collector in the order-in-original had relied on the text given at page-37 of the Hand Book of Electroplating by Canning (20th Edition). The appellants contend that Assistant Collector's reliance on this material is out of context, as the book discusses abrasive composition under Chapter 2 of that Book. The relevant portion of Assistant Collector's order is reproduced hereinbelow: "The dispute remains only as to whether polishing compositions and abrasive products are synonymous terms. The literature produced by the importer during the Personal Hearing shows various products being manufactured by them, the one whether Aluminium Oxide is being used by the importer are Canby C 101 and Canby C 102. In these compositions Aluminium Oxide is mixed with the other substances to make polishing compositions. In the handbook on electroplating referred to by the importers the two compositions are separate shown in the chapter of polishing methods one for abrasives composition and other for polishing. On page 37 the abrasive compositions are stated as under: "Abrasive compositions differ from polishing composition in that they contain abrasive grit and their action is primarily cutting rather than polishing. They have three main applications (i) Final abrasive finishing (ii) Satin finishing and (iii) De-burring". All the 3 aforesaid functions have been discussed in detail which are sequence of operations prior to the polishing of a metal. In the heading of polishing the purpose of polishing is stated as under: "The main function of a polishing process is the production a smooth reflective surface with only the minimum removal of material. To obtain such a finish within a reasonable time is necessary to incorporate within the polishing composition a suitable abrasive so that there is some abrading action in addition to surface flow.
The polishing operation generally takes place in two stages. The first stage, grease mopping, requires the use of a fast cutting polishing composition applied by means of a fairly stiff mop. This is followed by a final finishing or colour operation in which a softer mop is employed with white finish or rouge composition".
These methods are discussed in detail in the same book under the heading of polishing compositions. Such compositions are defined as "A polishing composition consists of an abrasive such as Tripoli, rough or lime together with a grease bond. The grease content of the composition serves a number of purposes. It holds the abrasive particles together in the composition block, it enables the abrasive to be retained on the mop fave and acts as a lubricant during the polishing operation. Polishing compositions are generally prepared in bar forms so that they can be easily applied to the polishing mop".
From the above it is clear that abrasive finishing operations and polishing operations are too distinct and different operations on the metal and two different and distinct type of products are being applied for attaining the required results. The abrasive compositions are totally different from the polishing compositions even though the polishing compositions may contain some amount of abrasive powders but they do not attain the description of abrasive products.
The importers admitted manufacturing the polishing compositions containing some amount of abrasives and are not engaged in manufacture of abrasive products for manufacture of which the notification exempts Aluminium Oxide. In view of the above I hold that the goods imported by M/s. Sureshchandra Agarwal & Co., Aligarh do not enjoy exemption under the aforesaid notification as claimed and need to be assessed at normal rate of duty as applicable to Aluminium Oxide when imported for manufacture of products other than abrassive products." 6. The Collector (Appeals) considered the appellants' appeal on the question of the product 'Cambay C101' and 'Cambay C 102' manufactured out of the imported item would be eligible for the benefit of concessional duty provided under Notification 37/89-Cus. as "abrasive product". The Collector (Appeals) examined the material on record and also the reference made by the appellant to the relevant pages from the Book Metal Finishing Guide Book Directory 1985, under a title "Compositions in Bar form", but has not been convinced with the same and gave the finding in the following words : "I find from the photo copies of the catalogue/literature furnished by the appellants as Annexure 'A' that there are several categories of polishing materials, such as Tripoli polishing compositions, Lime finishing compositions, Greaseless compositions, compositions for stainless steel (which also includes Hyfin and Canning Carbrax composition), Compositions for Chrome finishing, Compositions for Steel and Iron, Compositions for Silver, Gold and Platinum and Compositions for plastics and other non-metallic substances. These literatures pertain to the products of M/s. W. Canning and Co. Ltd. of England. The appellants have claimed that they are manufacturing the items similar to the Hyfin bar, Stainless Steel white bar and canning carbrax compositions and market the same as Cambay C 101 and Cambay C 102. According to the write-up produced on these 2 varieties of bars, it appears both are alumina based compositions very effective for goods cut to remove upto 15 micron thickness from the surface for Iron and Stainless Steel items, with little emphasis on colour (for C 101) and gentle cut green compositions with high colouring qualities, excellent for stainless steel, non-ferrous metals, and other metals for producing highly reflective mirror finish (for C 102). Both are used by application on cloth mops or buffs or fibre wheels. In the write-up of Hyfin variety, it has been indicated that such bars are excellent composition for final polishing of stainless steel, clean in use, fast cutting and 'clears' extremely well, producing a highly reflective finish. Most effective for removal of fine abrasive marks left after earlier polishing operations than previously available compositions. SS while also is a composition for polishing stainless steel and for removing fine abrasive marks. Canning Carbrax composition is a high degree polishing composition containing iron-free fast cutting abrasive and used for polishing stainless steels or mild steel.
There is no doubt from the quotations made in the literatures for these varieties of polishing bars that they all contain certain amount of abrasive material. However, abrasion appears to be a process only incidental in the main process of "polishing" and for giving high shine to metallic surface. These bars cannot be said to be basically "abrasive products" but can best be described as "polishing compositions" with combination of mild abrasive compositions. The basic distinction between "abrasive compositions" and "polishing compositions" has also been elaborated in the Hand Book for Electro Plating of W. Canning and Company quoted extensively in the Asstt. Collectors' order, wherein a clear distinction has been made between the "abrasive compositions" and "polishing compositions", the two being said to be different. The obvious emphasis on abrasion in abrasive composition is indisputable. The appellants claim that since their products contain certain degree of mild abrasion, these should also be classified as "abrasive products" for the benefit of Notification 37/89-Cus., dated 1-3-1989 is not correct. The aforesaid notification reads as follows : "The Central Government exempts silicon aluminium oxide, including zir-conia aluminium oxide, falling within Chapter 28 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for manufacture of grinding wheels and other abrasive products, from so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of 40% ad valorem." The emphasis in this notification is on "abrasive products", one example of which is a "grinding wheel". Therefore, the intention of this notification is to provide concessional duty to such products manufactured from the aforesaid raw materials which are meant for "abrasion" and not for "polishing" in which abrasion is only incidental to the process of the polishing (as in the case of the appellants). The appellants have a licence for manufacture of "polishing compositions" and the goods in question are accepted by the appellants are being "polishing compositions". Therefore, the benefit of exemption contained in Notification 37/89-Cus., dated 1-3-1989 would not apply in this case." 7. The appellants have assailed these findings. Shri Shankar D.Nankani, advocate arguing for the appellants submitted that the learned Assistant Collector had wrongly assumed that the appellants had not manufactured abrasive products. He submitted that for the purpose of interpretating the notification polishing items are wide enough to include abrasive product. He contended that any product which has abrasive quality would come within the category of notification. The Collector (Appeals) had admitted that the product had certain amount of abrasive material and this would be sufficient to justify the grant of exemption to the imported item. He submitted that the words in the notification "Other abrasive products" is wide term and it would include even the item in question. He contended that the notification has been using the item in the manufacture of products having abrasive qualities and such qualities can be called as "Other abrasive products" with the expression of the notification.
8. Shri S.K. Roy, learned Senior Departmental Representative submitted that the notification referred to "grinding wheel and other abrasive products". He further submitted that the expression makes it clear that it should have similarity with grinding wheels and it cannot be given a broad meaning so as to include "polishing composite and polishing products". He contended that the notification exempted abrasive product and not a product which has a composition of abrasive product. He further submitted that the importer is also not licensed to manufacture abrasive product nor the end-product was traded as abrasive product. He further contended that the appellant had clearly admitted that abrasive function and polishing function were two different function, and the literature also supports their admission.
9. We have carefully considered the rival submissions and also perused the literature and materials relied by the lower authorities which is also noted above. The question that arises for consideration is as to whether the imported item Aluminium Oxide Synthetic has been imported for manufacture of grinding wheels and other abrasive products, to enable the appellants to get the benefit of the Notification No.37/89-Cus., dated 1-3-1989.
10. The gist of the notification has been extracted in Collector (Appeals') order which is reproduced below : "The importer is admittedly engaged in the manufacture of polishing compositions and not "grinding wheels & other abrasive products".
The product, which the importer manufactures is traded by them in the "Cambay" Buffing Compositions. The importer's literature states :- "Cambay polishing compositions are based on Yellow Ochre and Aluminium Oxide to give fast cut and high colouring of Metals. While Tripoli based compositions are considered responsible for respiratory diseases to the workers. Aluminium Oxide and Yellow Ochre based Compositions are considered safer from such problems.
Cambay Stainless Steel, Compositions have been used with outstanding results in the buffing of all types of Stainless Steels, particularly where considerable cut may be required with the use of Cloth/Sisels Buffs/Fibre Wheels. They do the buffing, and also add admirable colour to the article. Produced from fused Alumina Oxide, they do a through job.
Where cold rolled steel is being worked on, there is a rugged Cambay Composition that will meet the most demanding requirements.
Excellent "Cambay" Composition can be used with Sisal Mops/Tempico Fibre Wheels for the removal of rough abrasive marks and scratches." and on "Fibre Polishing Wheels" the importers' literature states :- "Cambay" brand fibre polishing wheels are made from selected quality Mexican fibre, white or grey, under rigid quality control. Densely filled fibre, compact and robust construction of the wheels, ensures trouble free and longer service life. No falling out of fibre out of wheels, thereby ensuring greater safety to the workers. The Fibre wheels are guaranteed for higher performance at low cost compared to any other make in the market.
The wheels are made for "Taper" screwed spindle and can be safely used upto 3000 r.p.m. A stepped, aligned centre hold in the wheels, enable them to be mounted on spindle, quickly and accurately.
However, care should be taken that the wheels run through.
"Cambay" brand fibre polishing wheels are ideal for creating base for polishing iron and steel items and for stainless steel products.
They produce excellent base for mirror finish because of better metal cutting capacity." The appellants' contention is that these polishing wheels which they manufacture would come within the category of "Other abrasive product".
11. From the literature produced namely "Hand Book of Electroplating" by Canning (Twentieth Edition), the following extract from Page-37 is noted below :- Abrasive Compositions differ from polishing compositions in that they contain abrasive grit and their action is primarily cutting rather than polishing. They have three main applications :- At page-42 of the Book under the title "Polishing", the following para is noted which is reproduced below :- "The main function of a polishing process is the production of a smooth reflective surface with only the minimum removal of material.
To obtain such a finish within a reasonable time it is necessary to incorporate within the polishing composition a suitable abrasive so that there is some abrading action in addition to surface flow.
The polishing operation generally takes place in two stages. The first stage, grease mopping, requires the use of a fast cutting polishing composition applied by means of a fairly stiff mop. This is followed by a final finishing or colouring operation in which a softer mop is employed with white finish or rough composition." 12. From the Book "The Canning Handbook Surface Finishing Technology, the title "Polishing Compositions appearing at page-49 and 50 is extracted below :- "Polishing compositions are available in two forms bar and liquid.
Whilst bar compositions are still used for manual polishing operations, for automatic polishing it is now usual to employ liquid compositions applied by high velocity spray, or less frequently low pressure or airless spray systems. Bar Type Polishing Compositions A polishing composition consists of an abrasive such as Tripoli, calcined alumina, rough or lime together with a grease bond. The grease content of the composition serves a number of purposes. It holds the abrasive particies together in the composition block, it helps the abrasive to be retained on the mop face and acts as a lubricant during the polishing operation.
Polishing compositions are generally prepared in bar form so that they can be easily applied to the polishing mop. To be both effective and economical in use, the composition must soften under the influence of frictional heat from the mop just sufficiently to enable an abrasive to be taken off by the mop and to give a clean cut on the surface being polished. It must not, however, when unduly in use, otherwise there would be wastage of composition.
A quality Tripoli composition, e.g. Lustre, is used for the preliminary polishing of non-ferrous metals. Other grades of Tripoli such as Crown, Star, Diamond and Wearwell may be used where a lower standard of finish is acceptable.
Calcined Alumina based compositions, e.g. Hyfin were originally developed for the polishing of stainless steel but are now also used for the bright polishing of steel and non-ferrous metals. This material combines the cutting ability of the Tripoli with the colouring ability of lime based compositions." A lime based composition, e.g. Peerless polish is traditionally used on non-ferrous metals after Tripoli polishing to 'colour' or 'clear' the polished surface 'Clearing' removes any grease smears and reveals the polished finish.
Rough compositions, e.g. Radio Rouge are the ultra fine polishing of precious metals such as gold and silver and can be used on other non-ferrous metals when extra brilliance is required.
Abrasive compositions including Brushing Emery, Carbrax and Satene, have been considered earlier in this Chapter, as their function is cutting rather than polishing of the surface.
The various polishing compositions have only been considered in outline, as their use is best discussed in relation to the components to be polished. Polishing compositions are therefore given further consideration in the next chapter, pages 59 to 75, in which polishing sequences are discussed." 13. The reading of these materials alongwith the definition of the word "abrasive" appearing in Me Graw Hill Dictionary of Scientific and Technical Terms would also show polishing as one of the abrasive activity. Both the technical literature on which extractions have been noted above clearly indicate that polishing is an activity which falls immediately after abrasive finishing. The Handbook of electroplating has included and described abrasive composition within the Chapter of polishing methods. As has been noted in that book at page-42, the main function of a polishing process is production of a smooth reflective surface only by minimum removal of raw material. In continuance to say that to obtain such a finish within a reasonable time, it is necessary to incorporate within the polishing composition a suitable abrasive so that there is some abrasive action in addition to surface flow. The reading of these aspects of abrasive functioning and polish functioning only go to indicate that in the abrasive products the functioning is that of cutting rather than polishing of the surface. The notification refers to grinding wheels. The grinding wheels are in the nature of abrasive product carrying out abrasive function which are in the nature of cutting the surface rather than polishing of surface. As the literature indicates the grinding wheels perform the function of cutting surface and it makes the product fit for polishing to bring a smooth surface. The polishing composition also contained the imported item aluminium oxide synthetic as has been noted. The polishing activity is to bring in refinement and smoothness to the surface and therefore it could be brought within the broad category of "other abrasive products". The literature referred to by the appellants clearly indicate that the abrasive composition and polishing both come within the same chapter of polishing methods, therefore, the appellants' contention of that the product which they have been manufacturing and traded as fibre polish wheels could be brought within the category "other than abrasive product". Although abrasive finishing operation and polishing operation are of the distinct in nature but yet both activities are with a view to bring in a smooth satin like finish to the products. Both the operations of abrasive polishing are complimentary in nature and imported item is a requirement for manufacturing such products. Therefore, the term 'Other abrasive product" brings within its ambit abrasive and polishing operations which would bring in a fine smooth finish to a surface. It is well settled that exemption notification should not be interpreted in such a manner as to defeat its purpose of granting the exemption or whittling down the benefit. In view of our above discussions, we find that the lower authorities have adopted a strict view of the term "Other abrasive product" to exclude the polishing product which is not a correct view, as polishing is also an abrasive function, as has been noted in the literature. The importer is entitled to claim the benefit of the notification in question and they are entitled to succeed in their appeal with consequential relief, if any.
14. I have had the benefit of carefully going through the order of Hon'ble Member (Judicial) and I am of the view that the lower authorities were justified in denying the exemption under Notification 37/89 to the Synthetic Aluminium Oxide imported by the appellants, herein. This is for the following reasons : The Notification exempts, inter alia, aluminium oxide when imported into India for manufacture of grinding wheels and other abrasive products. Admittedly, the appellants are not claiming that they produce grinding wheels. The question is whether the polishing composition manufactured by the appellants, herein, would come within the scope of 'other abrasive products' contained in the Notification. In other words, the question is whether the appellants' products, namely, polishing composition is an abrasive product or not. There is on record a literature about their products under the heading "Cambay "Buffing Compositions. It is stated therein that these compositions have been used with outstanding results in the buffing of stainless steel, particularly, where considerable cut may be required. It is, further, stated that the products do the buffing and also add admirable colour to the article. It is, further, stated in the same literature that 'Cambay' Compositions can be used with sisal-mops for the removal of rough abrasive marks and scratches. Therefore, according to the appellants' literature on their products, it is seen that these are buffing compositions. In the literature on 'Metal Finishing', which is available on record, buffing is described as the operation following polishing, and it can be divided into four operations, each of which can be an end in itself depending upon the finish required. These are Satin Finishing for producing satin, brushed or butler finishes; Cutdown Buffing for producing a preliminary smoothness; Cut and Colour buffing for producing an intermediate lustre; and Colour buffing for the production of a high gloss or mirror finish. Therefore, the products are used for buffing which is a stage beyond polishing. Further, in the Handbook on Electroplating twentieth edition by M/s. Canning available on records distinguishes abrasive compositions and also describes polishing. According to this literature, abrasive compositions differ from polishing composition in that they contain abrasive grit and their action is primarily cutting rather than polishing. They have three main applications :- The main function of the polishing process has been described as the production of a smooth reflective surface. It is, further, stated that to obtain such finish within reasonable time it is necessary to incorporate within the polishing composition a suitable abrasive so that there is some abrading action in addition to surface flow. The literature states "the polishing operation generally takes place in two stages. The first stage, grease mopping, requires the use of a fast cutting polishing composition applied by means of a fairly stiff mop.
This is followed by a final finishing or colouring operation in which a softer mop is employed with white finish or rouge composition." 15. It would, therefore, appear from the literature available that the appellants understand and promote their product as a buffing composition and a perusal of literature available relating to abrasive compositions and polishing, as noted above, would show that the polishing composition for the manufacture of which the appellants have imported synthetic aluminium oxide, is a product meant for polishing containing abrasive materials and having primary polishing function rather than cutting function. In this view of the matter, it could reasonably be held that the synthetic aluminium oxide imported used in the manufacture of polishing composition in the facts of the present case, will not be eligible for exemption in terms of Notification 37/89.
16. In view of the difference of opinion between the Members, the following point is referred to the Hon'ble President in terms of Section 129 C(5) Customs Act, 1962: Whether the synthetic aluminium oxide imported by the appellants and used in the manufacture of polishing compositions will be eligible for exemption under Notification 37/89-Cus., dated 1-3-1989 as being used in 'other abrasive products' covered by the Notification.
The matter is referred to Sh. S.K. Bhatnagar, Vice President.
Sd/- 17. This matter has been referred to me by the Hon'ble President on account of difference of opinion-between two learned Members on the following points.
"Whether the synthetic aluminium oxide imported by the appellants and used in the manufacture of polishing compositions will be eligible for exemption under Notification Cus. 37/89, dated 1-3-1989 as being used in 'other abrasive products' covered by the Notification." 18. The Learned Counsel basically reiterated by the submissions made before the Regional Bench and pleaded for acceptance of the view of the Hon'ble Member (J).
19. Learned D.R. mainly reiterated department's view as expressed in Order-in-Original and Order-in-Appeal and the views as expressed by the Hon'ble Member (T) and pleaded for their acceptance on the grounds mentioned therein.
20. I have gone through the orders of both the Learned Colleagues and considered the above submissions as also the technical and commercial material on record. However, I have not considered the material sought to be filed by the department during this stage of the proceedings as the same was not before the original Bench. Initially when the Learned D.R. wanted to file test report/technical opinion the Learned Counsel had objected and both the sides had requested for referring the matter to the original bench, which was done, but the original bench had not agreed to consider the same and left in effect, it to the third Member's discretion. However, in the absence of sufficient cause I am not inclined to allow these documents at this stage. Furthermore a question had also arisen whether an application under Rule 23 was required and the Collector's Application No. 1442/94-C for additional evidence. (Received on 23-12-1994) could not be accepted at this stage.
I, therefore, confined myself to the documents which were before the original bench and considered the matter within the compass of the reference.
21. I find that the whole issue boils down to determining whether the polishing compositions in the manufacture of which the imported material is used could be considered as an abrasive product.
22. From the catalogues and the technical literature as well as the appellants' own submissions it is apparent that there are three types of polishing compositions.
The Learned Counsel has stated that the appellant's products are Alumina based compositions meant for polishing of stainless steel & other metals as also for removing fine abrasive marks from previous abrasions/earlier polishing and brushing mild steel prior to plating.
He has emphasised that these compositions are effective for good cut/gentle cut, with excellent finish. They are therefore required to be treated as abrasive products.
23. Learned Counsel has also drawn attention to the manufacturer's literature about 'Aluminas for Polishing' showing 'cut' as well as 'polishing' effect.
24. The appellants have also produced pamphlets of their compositions for stainless steel and 'Cambay' brand products ('Cambay' being their brand name) and Learned Counsel has drawn pointed attention to the products mentioned under the heading "CAMBAY BUFFING COMPOSITIONS" which include both aggressive 'goods' cut and 'gentle cut' varieties.
However, the extracts from 'Metal Finishing Guide Book' filed by the appellants themselves describe buffing as "the operation following polishing".
25. The department has on the other hand emphasised that such compositions are not abrasive products.
(i) Whether technically and commercially there is any distinction between 'abrasive compositions' and 'polishing compositions'; (ii) Whether such polishing compositions could be considered as other 'abrasive products' in the context in which the phrase has been used in the Notification.
27. In this connection I find that extracts from the "Hand book of ELECTROPLATING" by W. Canning (12th edition) produced by the appellants indicates as follows; "Abrasive compositions differ from polishing compositions in that they contain abrasive grit and their action is primarily cutting rather than polishing. They have three main applications :- "For the final abrasive finishing of ordinary mild steel and stainless steels two types of abrasive compositions are available based on emery and fused aluminium oxide, i.e. Brushing Emery Composition and Carbrax composition." "The main function of a polishing process is the production of a smooth reflective surface with only the minimum removal of material.
To obtain such a finish within a reasonable time it is necessary to incorporate within the polishing composition a suitable abrasive so that there is some abrading action in addition to surface flow.
The polishing operation generally takes place in two stages. The first stage, grease mopping, requires the use of a fast cutting polishing composition applied by means of a fairly stiff mop. This is followed by a final finishing or colouring operation in which a softer mop is employed with white finish or rouge compsition." 28. This shows that while polishing compositions may incorporate a suitable abrasive they are still technically distinct from abrasive preparations.
The fact that the difference is also recognised commercially is evident from the pamphlets produced by the appellants themselves and it is clear that customers have to select a composition as per their respective primary or principal objective.
Hence it will not be proper to overlook the distinction between these two types of preparations.
29. The second aspect which falls for consideration is whether in spite of this distinction such compositions could be considered as an abrasive product. In this respect the language of the Notification gains importance and it is noteworthy that the crucial words are for manufacture of 'Grinding wheels' and 'other abrasive products' the words other abrasive products have been used in the context of the preceding words the grinding wheels and take colour from them and show that the legislative intent was to cover abrasive products other than but similar to grinding wheels. In this respect Learned D.R. has rightly drawn our attention o the principle of "ejusdem generis" referred to in the judgment of Supreme Court reported in 1989 (39) E.L.T. 498. Learned Counsel has also referred to this judgment and emphasised that this very judgment also shows that it has to be 'applied with caution' and 'not pushed too far' and drawn our attention specifically to paras 7 & 8 in this respect. This is true but in the present case there is no denying that the abrasive products can be of various types as for example there are abrasive powders, abrasive stones (natural and artificial), abrasive wheels and abrasive compositions etc. Therefore, the principle would apply and the doctrine of liberal interpretation pleaded by learned Advocate does not alter this position. The citation of the judgment reported in 1990 (47) E.L.T. 500 and other case law by learned Counsel in this respect therefore does not advance the cause of the appellants.
30. It is thus observed that the abrasive compositions will have some polishing effect also and similarly polishing compositions may have some abrasive action also but what is crucial is as to which action and which effect is dominent and intended. The polishing compositions being technically and commercially distinct for abrasive compositions are products which cannot be considered as 'other abrasive products' in terms of the Notification in question.
31. In the circumstances I agree entirely with the view expressed by Hon'ble Member (T).
32. The matter is therefore returned to the original bench for passing the final order.
33. In the light of the majority view as above, it is held that the synthetic aluminium oxide imported by the appellants and used in the manufacture of polishing compositions will not be eligible for exemption under Notification No. 37/89, dated 1-3-1989. The appeal is, therefore, rejected.