TMI Blog1997 (3) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ber and rubber sheets and strips fall under Heading No. 40.05. The rubber sheets and strips are cut to the desired shape for making rubber soles which in turn are used for manufacture of rubber footwear inside the appellants own factory. Rubber footwear fall under Chapter 64. 3. The appellants submit that heading 40.05 covers compounded rubber, unvulcanised in primary form or in plates, sheets or strip . By Notification No. 71/68-C.E. dated 1-4-1968 (as amended) the Government have exempted all rubber products in the form of plates, sheets and strips unhardened whether vulcanised or not and whether combined with any textile material or otherwise (other than the products which are made either wholly or partly of rubber and which are used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., dated 1-4-1968 (as amended) (The plates, sheets and strips manufactured by them do not come under the excluded category of goods mentioned in Notification No. 71/68). The appellants, therefore, submit that even sheets and strips manufactured by using the compounded rubber prepared in their own factory are not liable to any excise duty in terms of Notification No. 71/68; 7. The appellants submit that the Collector (A) Central Excise has erred in not properly appreciating the S.No. (B) (5), page 588 of the Explanatory Note to HSN. That Note only says that compounded rubber in the form of granules, ready for vulcanisation is used as such for moulding purposes (e.g. in the shoe making industry). The appellants do not deny that compounded r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The contention of appellants have at last been accepted by the Collector, C.E. Chandigarh vide his letter C. No. IV(16)99-Tech./91/18800 dated 3-9-1991. 10. Ld. DR drew attention towards the impugned order-in-appeal and submitted that the said order is mainly based on the interpretation of Notification No. 152/87-C.E., dated 25-5-1987 and Notification No. 71/68, dated 1-4-1968, the relevant portion of which read as follows :- Notification No. 152/87-C.E., dated 25-5-1987 .....hereby exempts compounded rubber falling under sub-heading 40.05 ....... when such compounded rubber is used in the factory of production for the manufacture of goods falling under Chapter 40". Notification No. 71/68-C.E., dated 1-4-1968 ......exempts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers compounded rubber used in the factory of production for the manufacture of goods falling under Chapter 40 and there is no dispute regarding the fact that plates, sheets and strips come into existence during the manufacture of shoes in the appellants factory. 14. That it is ultimately used in the manufacture of shoes which fall outside Chapter 40 is immaterial as plates, sheets are themselves recognised as excisable materials and figure in the tariff in Chapter 40. 15. The Tribunal s order in the case of Umbergaon Rubber Ind. v. Collector of Central Excise - 1992 (62) E.L.T. 576 supports this view as in that case also the appellants were engaged in the manufacture of footwear and compounded rubber was being used for manufacture of ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at compounded rubber can be of various forms and types and depending upon composition and other characteristics stable or unstable and with short or long shelf life and may be in a marketable or unmarketable state. Therefore, it will depend on the facts of a given case. In the present case, the affidavit filed by the assessee has been rejected without any finding regarding the correctness or incorrectness thereof and the reasons for non-acceptance. However, in the absence of sufficient material on record which may enable us to decide one way or the other and the fact that this case can be decided otherwise on the basis of interpretation of the aforesaid two notifications, we are leaving this aspect open. 18. Insofar as the notifications ..... X X X X Extracts X X X X X X X X Extracts X X X X
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