2009 (4) TMI 321

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....s sought to be modified. The grievance of the appellant relates to the period 1-3-04 to 16-3-04 for which the product in question was subjected to excise duty which was otherwise exempted under the Notification No. 152/87-C.E., dated 25-5-87 which was effective from 1-4-88 till 28-2-1994. 3. The appellants are engaged in the manufacture of rubber tyres and tubes classifiable under 40.11 and 40.13 respectively. For the purpose of manufacture of tyres and tubes, the appellants were manufacturing compounded rubber which is an excisable product. However, it was subjected to exemption pursuant to Notification No. 152/87-C.E., dated 25-5-87. Accordingly, the appellants were availing the exemption under the said notification in relation to the co....

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....d rubber manufactured by the other industries, to the tune of Rs. 64,413/-. 6. While assailing the impugned order, the learned Advocate appearing for the appellants submitted that the main contention of the appellant before the Commissioner (Appeals) was that compounded rubber is not a marketable product and therefore, it could not be stated to be excisable product, however, the Commissioner (Appeals) has not at all considered the same nor arrived at any finding on the said issue and therefore, the impugned order needs to be set aside and the matter to be remanded to the concerned authority to decide the said issue. Attention was sought to be drawn to the order dated 20-3-09 in Appeal No. 775/04. 7. At the outset, it is to be noted that t....

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..... Even otherwise, the point is as to whether the compounded rubber can be said to be a marketable product or not, is already settled by the decision of the Tribunal which is sought to relied upon by the learned DR while contending that such product is marketable and therefore, it is excisable. The decision is in the matter of Ralson (India) Ltd. v. C.C.E, Chandigarh-I reported in 2003 (160) E.L.T. 846 (Tri.-Del.) wherein, after considering the various contentions and the relevant aspects of the matter as well as the test reports, it was held that a crucial evidence of chemical test report coupled with oral evidence of the Assistant Chemical Examiner and the assessee's admission of transporation and transportability of the product in questio....

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....7 dated 25-5-87. Further consequent to the Notification No. 74/94 dated 20-3-94 the appellant again sought exemption from payment of excise duty on the said product. The question of seeking exemption can arise only after the product is admitted to be excisable one and thereupon the assessee can avail the benefit under an exemption notification. The question of exemption from liability of excise duty can arise only in case of excisable goods. In other words, the question of claiming exemption can arise only in the case of excisable goods which are specifically exempted from the duty liability under a notification. This would disclose that the appellants themselves were considering the compounded rubber to be excisable product and that is why....