TaxTMI 
TaxTMI 
2000 (4) TMI 363
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....V. Sridharan, Ld. Advocate for the appellants and Shri S. Kannan, Ld. DR. 3.  Ld. Advocate took us through the history of this matter breifly. He submits that the grey cotton fabrics procured from market are impregnated with Phenol Formaldehyde resin to obtain prepegs which are in roll form. Later, these are then laminated, i.e. a number of layers of prepegs are joined together under heat and pressure to form laminates. He stresses that while the prepegs is in rolls, the laminates in cut pieces or sheets. He submits that laminates were manufactured by them were classified by them under heading 39.26 carrying nil rate of duty. The jurisdictional Assistant Commissioner re-classified under 39.20, which was opposed by the Collector (Appeals) in their favour, who reverted the classification to that claimed namely 39.26. The Tribunal, thereafter, endorsed the classification of the laminates under 39.26 under 1997 (92) E.L.T. 674-Trib. Revenue's appeal in the matter is now admitted by Hon'ble Apex Court [reported in 1998 (100) E.L.T. A173], but no stay is granted. 4.  Ld. Advocate submits that it is the contention of the department that the intermediate stage prepegs are d....
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....eting has been spelt out by the Apex Court in 1989 (43) E.L.T. 811 in CCE v. K. Mohan & Company Exports wherein the Apex Court had held that film rolls of indefinite length can be more appropriately described as "sheetings" rather than sheet. Even the ISI also defines as sheets as a piece of plastic sheeting produced as an individual piece rather than in a continuous length, etc. He further submits that a similar view was taken by the Hon'ble Apex Court in 1996 (87) E.L.T. 3 in the case of Inarco Ltd. v. CCE wherein piping and tubings were distinguished from cut pieces as it referred to lengths of pipes and tubes and not cut pieces. Therefore, on merits Ld. Advocate concluded that in view of heading 39.20 specifically covering only sheets and not sheeting, it would not be applicable to the facts of this case. 7. Ld. Advocate, thereafter proceeded to submit on the non applicability of the extended period under Proviso to Section 11A(1) as sought to be imposed in the order impugned. He submits as follows :- (a) Each classification list filed during the disputed period indicated the process of manufacture and clearly recorded the emergence of Pre-Peg....
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.... question of suppression with wilful intent just cannot arise. He cites the judgment of the Hon'ble Apex Court in the case of Pushpa Pharmaceuticals as in 1995 (78) E.L.T. 401 in this behalf. 9. With respect to the second demand of Rs. 7,05,778/- Ld. Advocate submits that the demand is on prepegs and not on the laminates which were finally emerging out of it in the premises of M/s. Finetech which was enjoying SSI exemption under Notification No. 1/93. He submits that after the laminates emerged from the heat press, no further finishing activity thereon was done by the appellants and they were cleared in such a semi finished form to Finetech Enterprises, who varnished the same and cut and trim the same to the required specifications as per market demand. Therefore, it cannot be said that no substantial manufacturing process was carried on at their end or that the goods which were sent after job work by the present appellants were in fully finished condition. Since the entire activity was subject to declaration of M/s. Finetech Enterprises as per Notification No. 1/93 wherein they had given the nature of further operations carried out by them and also because of the appellant....
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....ich was not before the original authority. Any adjudication on this contention requires verification of certain facts of manufacturing process because it has been contended that the stage at which duty is demanded on the prepegs in question it is in continuous roll length of 50 metres and not in sheets. Since this contention was not before the lower authorities, the record before us is also silent to the correctness of this position claimed. Under the circumstances, due to lack of information on facts in this behalf, the Tribunal is not in a position to consider clearly the contention raised. Necessarily, therefore, the matter on merits needs to be remanded to the original authority with the direction that he shall consider the submissions of the assessee on this ground on a de novo basis after ascertaining the factual accuracy of the fact of continuous length roll being claimed by the appellants and being subject matter of the appeal. While doing so, no doubt the Ld. Commissioner shall also be required to consider the two citations of judgments of the Hon'ble Apex Court noted above in this connection. 14.  While the facts with respect to the determination of the merits of ....