TMI Blog2000 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory premises of the Appellants on 27-8-1996 and noticed that they were manufacturing and clearing Micro Cellular Rubber Sheets with Ethylene Vinyl Acetate (MCEVA) without payment of duty. They first detained the stock of finished goods valued at Rs. 1,40,760 on the day of visit and later on seized the same on 26-2-1997. The Commissioner, under the impugned order has classified the product under sub-heading 3921.19 of the Tariff, directed the Assistant Commissioner to determine the value of the impugned product and work out duty payable after allowing the benefit of Notification No. 175/86 and imposed a penalty equivalent to duty amount under Section IIAC of the Central Excise Act, holding that the essential character of the impugned produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of EVA used varied from 10% to 25%; that as per definition of rubber and synthetic rubber in Polymer Science Dictionary, copolymers with 30-40% Vinyl Acetate are useful rubber and may be vulcanised with peroxides; that products had not been tested in the manner prescribed for the test of synthetic rubber and EVA itself is classifiable under Heading 40.02 and EVA rubber sheets fall under Chapter 40. He relied upon the decision in the case of Micro Rubber Industries P. Ltd. v. C.C.E., New Delhi in which Tribunal, vide Order Nos. 855-856/98-C, dated, 21-9-1998, remanded the matter as the samples had given differing results. He further mentioned that the issue involved is not as to what material is predominant in the finished product in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner held that the value of EVA Micro Cellular Rubber Sheets only should be taken for the purpose of determining the duty liability, the Assistant Commissioner had taken the value of complete footwear/chappal as given in the show cause notice; that as per their calculations, the value of EVA sheets/soles used in the chappals was below Rs. 30 lakhs in each of the financial years and thus no excise duty liability arises after giving effect to SSI exemptions. He also contended that penalty under Section 11AC of the Central Excise Act cannot be imposed as these provisions came into force from 28-9-1996 whereas the period involved is from October, 1992 to August, 1996, i.e., prior to the date on which Section 11AC came into effect. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 22-9-1997 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 Appellants 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 as per Note 4(a) to Chapter 40. Explanatory Notes of HSN also provides that "for the purpose of the test required by Note 4, a sample of the unsaturated synthetic substance or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for determining the duty liability and not the value of complete chappal. This Tribunal has held in a number of cases that quantum of duty has to be determined by the Commissioner himself as such power cannot be delegated [LML Ltd. v. CCE, Kanpur, 1995 (77) E.L.T. 154 (Tribunal)]. Thus the duty, if any, has to be determined by the Adjudicating Authority in this matter also. We therefore, remand the matter to the Adjudicating Authority with the direction to get the proper sample of the product retested as discussed herein above and to pass a well reasoned and speaking order after affording a reasonable opportunity of hearing to the appellants and following principles of natural justice and also to determine himself the quantum of duty, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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