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2015 (9) TMI 1322 - AT - Central ExciseClassification of goods - first item is processed rubber compound in sheet form - second item is processed rubber compound which is in the cord form - whether the item is classifiable under 4005.10 or 4005.90 - Held that:- It would be seen from the description of 4005.10 that the primary requirement to classify under the said sub-heading is that in relation to the manufacture, of which no Cenvat credit of duty paid on the inputs used has been availed. In the present case, there is no dispute that credit of duty paid on certain inputs have been availed by the appellant, as is clear from the show-cause notice. It is not disputed either by the ld. counsel for the respondent or not even by the Commissioner (Appeals). We find the Commissioner (Appeals) has taken a view that the respondent had classified the goods under 4005.10 and cleared the goods indicating this classification in their clearance document and their monthly return. This clearly indicates the intention of the respondent not to avail credit of the duty paid on inputs used in the manufacture of such goods. Accordingly, the appellant had not availed the credit on their main input i.e. raw rubber and fillers. However, they had availed on a minor quantity of consumables. Commissioner (Appeals) has thereafter observed that this is unintentional wrong availment of Cenvat credit and same cannot be considered as wrong classification of goods and has agreed with the contention of the respondent. - goods classified by the respondent in 4005.10 would be classifiable under 4005.90. We also note that the respondent has declared in various documents as also, in the form of letter that he is not availing the credit of any of the inputs used in the manufacture of such item which have been found to be factually incorrect on verification. In view of this position, there has been clear cut mis-statement of facts and extended period of limitation would be invocable as far as the first product is concerned. Penalty under section 11AC/Rule 25 will also be imposable. - Decided in favor of revenue. As regards, second item there is no dispute about the fact that for the manufacture of this product the compounded rubber in the primary form i.e. in the form of sheet is used as an input and the said sheet is further extruded through a die of dimension of 10×10 sq.mm. to get compounded rubber of the said dimension in running length. This product is outcome of second time extrusion process and extrusion process is carried out on the compounded rubber. This is a case where the processed compounded rubber in the primary form has been further worked upon and would therefore be classifiable under heading 4006 in view of chapter note 7 As the unit was in existence and producing this item, filing the classification list which had been continuously approved by the appellant and in view of this position, in our view, the extended period of limitation invoked in respect of the second item is not correct, and only the demand which is within the normal period of limitation is upheld - Decided partly in favour of Revenue.
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