9911796707
TMI Blog2014 (9) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... on Sh. S. K. Bajaj, Managing Director of the company. The fine of Rs. 5 lakh was also imposed in lieu of confiscation of the goods seized. 2. The issue involved in this case is classification of micro cellular rubber sheets and applicability of exemption Notification No. 80/95-CE dated 16.03.1005. The appellant's have contended that in the impugned order the classification has been decided on the basis of the test report in respect of the sample which was drawn from the finished product namely micro cellular rubber sheet while for the purpose of deciding classification, the sample has to be drawn in accordance with the statutory requirement of Chapter Note 4(a) of Chapter 40 of the Central Excise Tariff. 3. Learned Advocate explained in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o natural rubber modified by mixing with plastic and satisfying the requirement concerning vulcanisation, elongation and recovery as mentioned in Note 4(a). The appellant's have contended in the manufacture of MCEVA rubber sheets, they are using natural rubber ranging between 10% to 35% and this has not been rebutted by the Revenue. We also observe from the show cause notice dated 22.09.1997 that the samples were drawn from the finished goods for the purpose of test. We, therefore find substance in the submissions of the learned Advocate for the appellant's that the material sent for test was of finished product which contained fillers, plasticisers, extenders and other agents, the presence of which is not permitted for the purpose of test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the impugned goods are classifiable under heading 4008.11 and not under 3921.19 (as held by the impugned order). As the issue stands decided, any detailed analyses of the appellant's contentions shall be an idle exercise. 7. Coming to the issue of applicability of Notification No. 18/95-CE dated 16.03.1995, we find that the relevant entry exempts goods falling under heading 4008.11 or 4008.29 (Plates, blocks, sheets and strips of micro-cellular or non-cellular rubber [excluding plates, blocks, sheets and strips of latex foam sponge]) if used in the manufacture of soles, heels or soles and heels combined, for footwear. The adjudicating authority has taken a view that the assessee must produce evidence to show their eligibility for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed during the course of investigations wherein some of the purchasers were able to establish that sheets purchased by them were not actually put to the above uses. The adjudicating authority has observed that these purchasers in their statements have deposed that they were under no condition by the appellant to use the material in the manufacture of footwear. Accordingly he has come to a finding that inasmuch as there was no condition put by the appellant, the goods might have been used somewhere else, thus earning their exit from sub-heading 4008.21. 8. The expression used in heading 4008.21 is used in the manufacture of Whether such expression has to relate to the actual use (emphasis provided) or the same has to be interpreted so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the goods which are of a kind used for the specified purposes. The Hon'ble Gujarat High Court in the case of M/s Viswa & Co. vs. State of Gujarat [1966 (17) STC 581 (Guj.)] has observed as under- "A domestic electrical appliance, in our opinion, would be an electrical appliance of a kind generally used for domestic purposes. It may also be used at places other than the home or the house, but that would not destroy the character of a domestic electrical appliance which attaches to it by reason of its being a kind of an electrical appliance generally used for the household .. It is of course not necessary that an electrical appliance, in order to satisfy the description of a domestic electrical appliance, must be actually used in the h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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