TMI Blog2008 (7) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... heading No. 4016.99 instead of Chapter heading No. 4008.21; that against their claiming, the Department issued SCNs stating that their products were rightly classifiable under chapter heading No. 4008.21 and not under chapter heading No. 4016.99 as claimed by the appellants; that both the SCNs were adjudicated by the Assistant Commissioner, Satara and held that the appellants items were rightly classifiable under chapter heading No. 4008.21 as per Chapter Note 9 of Chapter 40 which says that chapter heading No. 4008.21 will also apply to the plates, sheets or strips whether or not cut into shape and the surface worked or further worked, so as to fit for resoling or repairing or re-treading of rubber tyres and while passing the orders, the Assistant Commissioner also placed reliance on the decision of the CEGAT in the case of MRF Ltd. v. Collector of Central Excise [1993 (67) E.L.T. 968) (T)]; that being aggrieved by the above order, both the appellants appealed before the Commissioner (Appeals) who vide his OIA No. P/7-8/1996 dated 18-12-1996 and OIA No. P/27/1997 dated 21-1-1997 in the case of Pang Rubber Products and Samarth Rubber Products Ltd. respectively allowed the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embly is then cured/vulcanized in hydraulic press, that the extra portion of the polyester portion of polyester film is cut off and the patch is a finished product in a ready to use condition of peculiar shape of old size for repairing of tyres.; (e) that the Board reiterating the instructions of 1962, clarified vide para 5 of the Circular that the rubber products used for repair of tubes or tyres do not attract duty and rubber product in the form of plates, sheets and strips which are used for retreading of tyres or repairing of tyres alone were dutiable under item 16A (2) and the criss-cross rubber patches were not in the form of plates, sheets or strips and therefore, were never subject to duty under item No. 16A(2) but only under Tariff Item No. 68; (f) that after the introduction of the Central Excise Tariff Act, 1985, plates, sheets and strips, falling under item 16A (2) are to be classified under sub heading No. 4008.21 and the appellants articles namely vulcanized rubber which was classified under item 68 was brought under heading No. 40.17; (g) that vide the Finance Act, 1990, Chapter Note 9 was amended to add the following sub para (3) which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, the Tribunal upheld the contentions of the MRF case; (p) that the CEGAT in MRF case has held that the criss cross patches are not plates, sheets and strips and it was understood that no appeal was filed by the Department against the above decision before the Hon ble Apex Court; (q) that sub-heading No. 4008.21 refers to plate, sheet or strip and since patches are not plates/sheets/strips as held in MRF case, it cannot fall under sub-para 3 of Chapter Note 9 or under sub heading 4008.2 1; (r) that the classification of criss cross rubber patches for tyres all over the country is only sub-heading No. 4016.99; (s) that the appellants had provided copies of OIO No. V/40/30/ 91/94-CF dated 29-11-1996 and OIO No. V/40/35/87-VC dated 19-12-1991 passed by the jurisdictional Assistant Commissioner, Coimbatore and Dindigul respectively confirming the classification of the product under sub heading No. 4016.99 only; (t) that the above orders have not been appealed against by the Department; (u) that it would be an incongruous situation if the same product is being classified by the Central Excise Department under two different headings and excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the hearing, in addition to submitting synopsis, he also briefly narrated the whole issue as well as the submissions made in the Grounds of Appeals made before the Apex Court. He also produced samples of the products manufactured by his clients during the hearing. 6. I have gone through the case records, including the record of PH and seen the samples obtained during my visits and also the samples produced by the Advocate during the hearing. It has already been stated that both the appeals are taken as per the directions of the Apex Court. As both the appeals cover the same issue, I propose to pass a common order for both the appellants. The lone issue to be decided in both the appeals is whether the product namely, criss-cross rubber patch would fall under sub-heading No. 4008.21 as contended by the Department or under sub heading No. 4016.99 as claimed by the appellants. The Department s case is that the product in question would get covered under sub heading No. 4008.21 in view of the Note contained in sub-para 3 of Chapter Note 9, according to which sub heading No. 4008.21 shall not only cover plates, sheets or strips but also profile shapes and placed reliance on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion was covered under tariff item No. 68 prior to the introduction of the Central Excise Tariff Act, 1985 and after the introduction, it was brought under 4016.99. The whole problem started due to the amendment to Note 9 of Chapter 40 vide sub para 3. According to the said amended para, tariff sub heading No. 4008.21 was applied to plates, sheets and strips whether or not cut to shape and surface worked or further worked so as to render them fit for resoling or repairing or re-treading of rubber tyres. Basing on the above amendment, the original authority classified criss-cross rubber patches under sub heading No. 4008.21 and also placed reliance on the CEGAT s decision in the case of MRF v. Collector of Central Excise [1993 (67) E.L.T. 968]. Subsequent to the above order, the appellants got favourable orders from the Commissioner (Appeals) who classified the product in question under tariff heading No. 4016.99 holding that the Assistant Commissioner s reliance on the decision of the CEGAT in the case of MRF v. CCE is misplaced as the tread rubber is said to be different product which is in the nature of sheets and since the present product is not in the nature of plates, sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of including material which is manufactured for resoling or repairing or re-treading of rubber tyres under sub heading No. 4008.21. So long as the material could be viewed as one in plates, sheet form or strips and same has been surface worked or further worked or cut to any shape to make it suitable for that purpose, then even if the material is considered as profile shape in profile form, the same would still figure within the ambit of sub heading No. 4008.21 . The above two decisions clearly reveal that the product before the CEGAT in the case of MRF v. CCE [1993 (67) E.L.T. 968] was different from the product, which is under dispute. In other words, the product before the Tribunal in the case of MRF was in the form of plates, sheets and strips. In the case of M/s. Elgi Tyres Treads, it has been clearly brought out that sub heading 4008.21 shall cover even the profile shapes but the product should be in the form of plates, sheets or strips. Therefore, the reliance placed by the Assistant Commissioner, Satara on the decision of the said MRF case is misplaced, as held by the Commissioner (Appeals). 6.2 Under the above circumstances, it is necessary to compare the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dropped further proceedings. He further held that basing on the reliance of the said MRF case, the sub heading No. 40.08 covers only plates, sheets, strips, rods and profile shapes which could be used in the manufacture of some other articles and hence criss cross rubber patches an article of unvulcanised rubber, will not merit classification under heading 40.08. Enquiry with the Divisional Assistant Commissioner and the Commissioner revealed that the above order was not disputed further by the Department and the appellant namely, M/s. Anand Engineering Works continue to classify the product under sub- heading No. 4016.99. 6.4 After collecting the samples from M/s. Anand Engineering Works, Karur, I also visited the premises of the appellants on 21-7-2008 and I found that both the appellants are manufacturing the same items (may be in different sizes). I also found that the samples collected from M/s. Anand Engineering Works are similar to the products manufactured by both the appellants. Besides, I observed that the manufacturing process undertaken at Karur unit and the appellant s units are one and the same. From the above, it is very clear that the decision of the Hon ble CE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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