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2014 (9) TMI 1074 - CESTAT NEW DELHI

2014 (9) TMI 1074 - CESTAT, NEW DELHI - TMI - Confiscation of goods - rubber sheets - imposition of redemption fine and penalty - classification of micro cellular rubber sheets - applicability of exemption Notification No. 80/95-CE dated 16.03.1005 - Chapter Note 4(a) of Chapter 40 of the Central Excise Tariff - drawing of samples - Held that: - the issue of classification of micro cellular rubber sheets manufactured by another company M/s Popular Rubber Industries vs. CCE, Delhi-I [2004 (2) TMI .....

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of the unsaturated synthetic substance or a substance of a kind specified in Note 4(c) (in the condition of unvulcanised raw material) is to be 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 r .....

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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 assessee who claims the benefit to establish that they satisfy the condition as specified therein. This very issue in respect of the impugned goods has however .....

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es - the product for domestic clearance has to be held as classifiable under heading 4008.21 - the appellant’s are eligible for the benefit of Notification No. 18/95-CE dated 16.03.1995. - Appeal allowed - decided in favor of appellant-assessee. - Excise Appeal Nos. 143-1434 of 2005 - 54183-54184/2014 - Dated:- 25-9-2014 - G. Raghuram (President) And R. K. Singh (Technical Member) For the Appellant : V. Lakshmi Kumaran, Advocate For the Respondent : Sweta Bector, DR ORDER R. K. Singh (Techni .....

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lved 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 Chap .....

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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 Insti .....

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tic Rubber has been explained in Note 4 and as per Note 4(c) synthetic rubber applies to 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 w .....

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ubstance or a substance of a kind specified in Note 4(c) (in the condition of unvulcanised raw material) is to be 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 .....

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e 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 to above. We find that the judgment of the Tribunal in the case of Papular Rubber Industries (supra) is squarely applicable to the present case. In that order 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 an .....

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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 .....

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reproduced below:- 7. After appreciating the submissions made by both the sides, we note that there is no dispute about the fact that the clearances of the appellant s product, in majority of the cases, is to the manufacturers or to the persons who use it for the manufacture of heels, soles or heels and soles combined for footwear. The statements of the Managing Director, Executive and the Director of the company recorded during the course of investigation indicate to the above fact. We also not .....

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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 mean that to be ordinarily used or intended use. If the interpretation advanced by the Revenue is accepted, the same would mean that the manufacturer of the rubber sh .....

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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 e .....

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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 sati .....

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