TMI Blog2014 (9) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... e vulcanised with sulphur and then subjected to elongation and recovery test. Accordingly, in the case of substance containing materials not permitted by Note 4. the test is to be carried out on a sample which does not contain such materials or from which such materials have been removed. The explanatory notes also mentions that in the case of vulcanised rubber articles, which cannot be tested as such, it is necessary to obtain a sample of the unvulcanised raw material from which the articles are made, in order to perform the test. The classification of the impugned product is to be determined on the basis of test report only and as the proper sample has not been sent for the purpose of test, the impugned classification cannot be sustained and matter has to be remanded - in the present appeal also, while deciding the case denovo the Commissioner has relied upon the very same sample which was drawn out of the finished product and not drawn in accordance with the requirements of Chapter note 4(a) referred. Issue of applicability of Notification No. 18/95-CE dated 16.03.1995 - Held that: - an exemption notification is required to be interpreted strictly and the onus is on the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls (fillers, extender and withdrawn after balkanization). 4. After going through the adjudication order, we find that the appellant s contention in this regard is correct. We also find that the issue of classification of micro cellular rubber sheets manufactured by another company M/s Papular Rubber Industries vs. CCE, Delhi-I 2000 (167) ELT 469 and 2000 (117) ELT 65 (T) stands decided by Hon ble CESTAT. The facts of the present case are similar to those obtaining in the case of Popular Rubber Industries (supra). 5. In para 6 of the order the Tribunal observed as under: 6. We have considered the submissions of both the sides. The impugned order has been passed classifying the impugned product under sub-heading 3921.19 relying upon the test reports received from Central Institute of Plastics Engineering and Technology and applying Rule 3(b) of the Rules for the interpretation of the schedule to the Central Excise Tariff Act. The Advocate appearing for the appellant s have vehemently argued about the manner in which samples have been drawn by referring to Notes 1 and 4 to Chapter 40. We observe from Note 1 to Chapter 40 that synthetic rubber falls within the meaning given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Tribunal has categorically held 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 the said exemption by proving that the impugned goods were used in the manufacture of soles, heels or soles, heels and soles heels for footwear. The adjudicating authority also relied upon the statement of three customers who claimed to have used the goods for purposes other than soles and heels for footwear. The appellant have contended that the sales to these three customers were minuscule and they only ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to verify the use of such goods at the customer s end and to establish (subsequent to clearance of the goods) that the same were actually used in the manufacture of soles or heels for footwear. Such an interpretation, on the face of which would defeat the entry. The same product, if actually used for soles and heels would earn its claim under heading 4008.21 and if not actually used would be ousted from the said claim. In our views the expression used in the manufacture of refers to the intended used of the goods or the ordinary use of the goods or the kind used in the manufacture of heels soles etc. The same is only description of the goods required to be classified under the said sub-heading and is not restricted to only those clearances of sheets which are ultimately actually used in the manufacture of heels, soles etc. The said expression is appearing under the column description of the goods and has to be held as relating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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