TaxTMI 
TaxTMI 
2002 (4) TMI 419
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....d.; that the said Customers used to supply high tenacity yarn to them for conversion into grey tyre cord fabrics; that their classification lists claiming classification under Heading 59.02 as 'tyre cord fabrics of high tenacity yarn' were approved by the Department from time to time; that a show cause notice dated 25-2-93 was issued for classifying the impugned product under Heading 59.09 on the basis of a test report from National Test House regarding the tenacity of the fabric and for demanding Central Excise duty for the period from February, 1988 to August, 1992; that the Commissioner under Order dated 29-12-1999 confirmed the demand and levied penalty and interest on the ground that the Appellant did not produce any document to prove that they had received high tenacity yarn from their customers; that on Appeal filed by them, the Appellate Tribunal vide Order No. A-977/CAL/2000, dated 11-1-2000 remanded the matter for de novo adjudication and directed the Commissioner to provide the Appellants with an opportunity to produce the documents which they could not have produced due to closure of the factory of M/s. Dunlop (I) Ltd. The learned Vice President, further, submitted that....
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....d textile articles specified in clause (b) of that Note; that by no stretch of imagination the impugned products which were cleared in lengths of 200 to 500 meters rolls could be termed as textile articles under clause (b); that this is also clear from the clarification given in CBEC's Circular No. 22/88-CX. I, dated 10-8-1988 which clearly states that only such articles which can directly be used for industrial purposes would be covered under Heading 59.09; that it has been held in Kumar Enterprises v. CCE, Chandigarh, 1999 (105) E.L.T. 498 (T) that the logic given by the Board in the clarificatory Circular would apply to the disputes arising out of the earlier notification also. He, also, relied upon the decision in Batliboi & Co. Ltd. v. CCE, Baroda, 2000 (115) E.L.T. 67 (T). He, further, submitted that the fabric was not rubberized by them and had not undergone any other process after weaving which could make it suitable for use in any industrial purpose; that in fact, the said fabrics were rubberized at the Customers' factories in their Dipping plants before being used for the manufacture of tyres; that their product also does not fall under clause (a) of Note 6 as it cannot b....
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....Shri Roy Chowdhary, learned Advocate for the Revenue, submitted that Heading 59.02 of the Tariff applies only to "Tyre cord fabric of high tenacity yarn of polyamides, polyesters or viscose rayon"; that the National Test House's Test Report dated 31-5-1994 clearly mentioned that tenacity was 48.6 CN/tex as against 55 CN/tex as per Note 4 to Section XI of the Central Excise Tariff; that the sample was tested by the Test House on lines of IS 4910 (Pt 2) 1968. He, further, submitted that words non-woven is written in the Test Report as the fabric is not technically woven material; that the fabric is like a net and not a woven fabric in general; that the Appellants themselves have claimed the impugned goods to be woven fabrics. He also mentioned that as the Appellants are claiming the benefit of Notification No. 63/87-C.E. the onus of proof is on them to prove that the fabric is of high tenacity yarn which they have not proved; that the Appellants have failed to provide documents to prove high tenacity character of the fabric; that Board's Circular refers to tyre cord fabrics of cotton base only because it requires some processing before use which is not so in respect of other fabrics;....
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....could not be placed before the Department. The Tribunal had remanded the matter only for this purpose. The Appellants have thus failed to produce the necessary documents as promised by them. National Test House, Alipore, on retest has reported the tenacity in CN/tex 48.6 only which is less than the tenacity specified in Note 4 to Section XI of the Tariff. The Certificate given by Dunlop India Ltd. cannot be over and above the test report given by the National Test House. The letter dated 12-6-2000 from College of Textile Technology is only comment on raw material of Nylon Tyre Cord produced by the Appellants. It is not clear at all whether the College conducted any test at all. Similarly M/s. Vardya & Associates, Textile Consultant, have given a general opinion without carrying out any test. Accordingly we are of the view that a Test Report given after conducting test by National Test House cannot be discarded on the basis of general opinion tendered by a Textile Consultant and College. The Appellants have thus not succeeded in establishing their claim that the impugned product is fabric of high tenacity yarn. On the other hand the Revenue has established by producing Test Report t....