TaxTMI 
TaxTMI 
2001 (12) TMI 664
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....he said intermediate product as double textured rubberised fabric and by classifying the same under Heading 59.05 of the Central Excise Tariff. 2. As per the Revenue inasmuch as the said intermediate excisable product was captively used by the appellant in the manufacture of exempted footwear, the exemption under the provision of Notification No. 217/86-C.E., dt. 2-4-1986 was not available. The demand has been raised only up to 6-12-1994 as a specific Notification No. 143/94, dt. 7-12-1994 granting exemption to rubberised textile fabrics falling under Heading 59.05, if captively used for manufacture of exempted footwear was issued. 3. Shri S.K. Bagaria, learned Advocate appearing for the appellant submits that for the manufacture of rubber canvas footwear the appellant buys fully manufactured fabric, rubbers and chemicals from the market. Rubbers and chemicals are mixed in mixtures. The mixture is warmed at a temperature of 70°C to 80°C immediately before use. This wormed and sticky mixture is put on to three bowl calendering machine where it passes through upper two rollers so as to facilitate its simultaneous spreading in between two layers of fabric. In this ....
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....ed upon the above facts, it is the submission of the learned Advocate that in view of the short shelf life and in view of the raw, crude and elementary condition of the product, it is not possible or feasible to sell or market the said fabrics. He submits that the appellant had produced a number of evidences in the shape of experts' opinion before the adjudicating authority to stress upon their plea that the product as emerging in their factory is not marketable. He drew the attention of the Bench to the following experts' opinion :- (a) Certificate dt. 13-2-1994 from Footwear Design & Development Institute, Ministry of Commerce, Government of India. (b) Affidavit of well-known Rubber & Plastic Technologist, Mr. Somnath Chakravarty, M.Sc., Ph. D., FPRI, FICS FIC. (c) Affidavit of Mr. Parvati Pada Mukherjee, Rubber & Plastic Technologist and having experience of about 50 years in Rubber & Plastic Industry. (d) Affidavit of Mr. Maharaj Krishan Khanna, the appellant's Production Manager. Shri Bagaria submits that as against the above evidence adduced by the appellant, the departm....
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....essary to give stability and resultant marketability to the product. It would be beneficial to reproduce from the various books, as quoted by the learned Advocate at this stage. (a) The Vanderbilt Rubber Handbook published by P.T. Vanderbit Company Inc. Norwalk "All of the processed elastomer coated fabric, to be made into a finished material, must go through the cycle of curing. The vulcanisation is necessary to give the proper physical properties to the rubber compound. Curing, or vulcanising, is generally accomplished by festooning in a dry heat chamber under specific conditions of time of temperature. These conditions are adjusted to the rubber compound and the specific requirements of the finished goods." (Pg. 5 of Suppl. P.B.) (b) Concise Encyclopaedia of Polymer Science and Engineering : "Useful rubber articles, such as tyres and mechanical goods, cannot be made without vulcanization. Unvulcanised rubber is generally not very strong, does not maintain its shape after large deformation, and can be very sticky; it has about the same consistency as chewing gum". (Pg. 7 of Suppl. P.B.) "The term 'vulcanization' is generally ap....
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.... impregnated with soft rubber compound and in unvulcanised condition are not marketable. Similarly the Hon'ble High Court at Delhi vide its order dt. 20-8-1973 in CW No. 606/70 appearing at pages 331 to 334 of the appellants' paperbook has directed the Union of India to refund the amount collected by the Revenue as Central Excise duty in respect of friction cloth used in the process of manufacture of footwear inasmuch as the matter was not opposed by the excise authorities. 3.6 Shri Bagaria also relied upon the following judgments in support of his contention that the unvulcanised fabrics quoted with rubber compound emerging at an intermediate stage cannot be held to be dutiable. (i) 1997 (89) E.L.T. 538 - CCE v. National Insulated Cable Co. (I) Ltd. (ii) 1990 (50) E.L.T. 10 - BMF Beltings Ltd. v. UOI (iii) 1987 (31) E.L.T. 671 - Brammer V. Link Belling (I) Ltd. v. ACCE (iv) 1993 (67) E.L.T. 140 - CCE v. Bharat Electronics & Plastics (v) 2000 (120) E.L.T. 28 (S.C.) = 2000 (39) RLT 895 - CCE v. K.K. Rubber Co. Pvt. Ltd. (vi) 2000 (117) E.L.T....
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....upreme Court is not correct inasmuch as there was no view expressed by the Hon'ble Supreme Court on the excisability of the product. 3.9 Shri Bagaria also submitted that the benefit of exemption Notification No. 5/87-C.E., in respect of Gussed brand of footwear was denied by the adjudicating authority in a most arbitrary manner by alleging that there is a serious doubt, whether in the said rubberised fabrics, the rubber content pre-dominated by weight. He submits that the appellant had filed copies of production guides relating to the said footwear, copies of quality specification, copies of certificates from the suppliers of the fabrics, copies of costs cards, copies of daily production report, etc., to show that so called rubberised textile fabric prepared for being used in manufacture of Gussed brand of footwear never exceeded more than 500 gms., per square metre in weight and rubber always pre-dominated by weight in the said fabrics. They also made submission as regards the report of chemical examiner and filed an affidavit of Shri M.K. Khanna. In case of doubt, a request was made for re-testing of the samples. All these factors were ignored by the Commissioner. 3.10&ems....
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..... (The sample of the goods being used are enclosed herewith. The sample produced before Commissioner during adjudication proceedings is also enclosed). It is also pointed out that vulcanization as a chemical process is only associated with rubber compound and has nothing to do with fabrics. SHORT SHELF LIFE : One of the pleas advanced by the appellant is that the product has a short shelf life and, therefore, cannot be called goods. It may be seen that even by party's own admission these goods were capable of being stored for a period of two to four weeks, two weeks during summer and four weeks during winter. Periods of two weeks and four weeks cannot be considered to be short shelf life. It is also admitted fact that the goods were taken out of the appellants' factory to job workers for stitching, etc. Some of the important decisions of Tribunals on this topic are worth mention - In the case of M/s. Indian Oxygen Ltd. v. CCE, Bhubaneshwar reported in 1997 (89) E.L.T. 557 (T), it was held in Para 2.4 that a short shelf life was immaterial. Para 2.4 is reproduced for ease of reference : "2.4 We have carefully considered the pleas advanced from both sides. We agree wit....
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....t has a reasonably long shelf life. If kept in a cold storage or similar other place, it can be stored for long period of time. It can be taken outside the factory for further processing like cutting, stitching, etc. EMERGENCE OF NEW PRODUCT : It has been held time and again by Supreme Court and other judicial authority that what is necessary for the process of manufacture is emergence of a new product. Admittedly the inputs here are textile fabrics having sandwich of rubber compound and mixtures in between. The said lamination is passed between roller heated at 70 degree to 80 degree C. What emerges out of the roller is rubberized fabrics having rubber between two layers of textiles. The inputs and outputs are entirely different things. The commodity that emerges is a distinct commodity having its own identity, name and specific use and is totally different from the raw materials. The excisability of such fabrics is, therefore, in no doubt. MARKETABILITY : It has been held that marketability is a must for anything to qualify as goods. Marketability does not imply the actual sale and purchase but ability of being bought and sold in market. The product in question is admittedly ....
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....cument referred to by the party will have no relevance in view of clear test report of the chemical examiner. It may be seen that the test report in respect of "gusset" brand of footwear can be seen on pages 163, 171, 179, 187 of the main paperbook. It may be seen that in all the test report it is clear that there is a predominance of textiles. There was no justification for granting the benefit of that notification as rubber was not predominating. CLASSIFICATION : Once it is established that the impugned item is "goods", the same is to be classified under the Central Excise Tariff. The best possible classification occurs under the sub-heading 5905.10 of the CETA, 1985. LIMITATION : This is a fit case for invocation of proviso to Section 11A of the Central Excise Act. Even though there was a specific High Court judgment of Hon'ble High Court of Calcutta the party did not declare manufacture of these rubberized fabrics in their statutory record or declaration. Some of the relevant case laws on the subject are indicated below :- (1) 1996 (82) E.L.T. 610 (T) - Century Cement v. CCE (2) 1994 (70) E.L.T. 628 (T) - CCE v. Densons Pult....
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....er-in-original. 7. The issue required to be decided in the present appeal is as to whether the unvulcanised sandwiched fabric assembly produced in the appellants' factory and captively consumed by them can be called as 'goods' and can be classified as rubberised cotton fabrics falling under Chapter 59 of CETA, 1985. The sum and substance of the appellants' submission is that the said item come into existence at an intermediate stage and being in unvulcanised stage and having short shelf life is incapable of being marketed. For this proposition, the appellants have referred to a number of decisions of the Tribunal, various High Courts as also of the Hon'ble Supreme Court. However, we find that as against the said decisions the adjudicating authority has relied upon Calcutta High Court's decision in the appellants' own case as confirmed by the Hon'ble Supreme Court inasmuch as the appeal filed by M/s. Bata India against the said decision of the Hon'ble High Court, as reported in 1993 (68) E.L.T. 756 (Cal.) was dismissed. So, first of all we would discuss the applicability of the said decision of the Hon'ble Calcutta High Court. 8. The Hon'ble Calcutta High Court, on an ap....
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....scuss the same in the succeeding paragraphs. It is seen that right from the beginning it has been the appellants' stand that the so called in-process material emerging at an intermediate stage is not marketable commodity inasmuch as the same is incapable of being ordinarily brought to the market on account of its short shelf life. This stand of the appellant has not been rebutted by the Revenue by producing any evidence on record to show that the goods in question are capable of being marketed. On the other hand we find that the Commis­sioner has relied upon the fact that such rubberised fabrics are being sent by the appellant to their job workers for further stitching, which fact proves the marketability of the goods in question. The appellants have explained that the shelf life of the so called rubberised fabric varies from 7 days to 4 weeks depending upon the weather conditions and keeping this view in mind they always chose their job workers which are situated nearby. For an item to be vandiable, it is necessary that the same should have sufficiently long shelf life so as to enable the same to come to the market for being bought and sold in the ordinary course of their busi....
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....sed cotton fabrics called friction cloth captively con­sumed in manufacture of transmission belting and having no market were held not liable to excise duty. 13. In BMF Beltings Ltd. v. Union of India - 1990 (50) E.L.T. 10 (A.P.), the Hon'ble Andhra Pradesh High Court has observed that if the product in question is not generally marketed and is not known in the market as a product by itself which can be bought and sold across the counter in the open market then it does not come within the category of the 'goods' as envisaged under Section 3. By observing so the Hon'ble High Court has held that the unvulcanised friction cloth used in manufacture of belts not capable of being generally marketed cannot be held to be goods. 14. The Hon'ble Bombay High Court in the case of Brammer V. Link Belting India Ltd. and Another - 1987 (31) E.L.T. 671 (Bom.) has held that application of rubber compound to cotton fabrics is only an intermediate stage and does not amount to manufacture of cotton fabrics rubberised and as such no duty can be levied on the same. The Hon'ble High Court has rejected the enquiries made by the Inspector of Central Excise relating to marketability of vulca....
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.... the case of CCE, Madurai v. Saghay Rubber Products, 1999 (84) ECR 446 (T), holding rubberised cotton fabrics arising at an intermediate stage as not liable to duty on account of its non-marketability. 20. We also take note of the Hon'ble Supreme Court's decision in the case of CCE, Baroda v. United Phosphorous Ltd. - 2000 (117) E.L.T. 529 (S.C.). By taking note of the earlier decisions of the Apex Court in the case of Bhor Indus. Ltd. - 1989 (40) E.L.T. 280 (S.C.); Ambalal Sarabhai Enterprises - 1989 (43) E.L.T. 214 (S.C.); Moti Laminates Pvt. Ltd. - 1995 (76) E.L.T. 241 (S.C.), it has been held that no product is goods unless shown to be marketable by the department. Mere specification in the dictionary or Central Excise Tariff and draw back rate schedule is of no consequence. The Hon'ble Supreme Court in the case of Nirlon Synthetic Fabrics Ltd. - 1996 (86) E.L.T. 457 (S.C.) has again stressed the criteria of marketability of a product for its dutiability and as again held that the onus to prove marketability is upon the Revenue, which is required to be discharged by production of evidence. 21. We also take note of the Hon'ble Supreme Court's decision in the case of ....
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....id rings, it was for the Revenue to demonstrate that the appellant's averment in this behalf was incorrect and not for the Tribunal to assess their brittleness for itself. Articles in question in appeal are shown to the Tribunal to enable the Tribunal to comprehend what it is that it is dealing with. It is not an invitation to the Tribunal to give its opinion thereon, brushing aside the evidence before it. The technical knowledge of the Members of the Tribunal makes for better appreciation of the record and not its substitution." As such in the absence of any evidence by the Revenue, the observations of the Commissioner that he has seen the product and his findings based upon the same are not relevant, especially when the appellants have produced on record the technical evidence and the expert opinions to show that the goods are not marketable on account of their instability. The evidences produced by the appellant by the experts relating to marketability of the product have not been rebutted by the Revenue. As such we hold that the product in question has not been proved to be marketable and hence the same is not excisable. 22. Before we part we would like to mention that m....
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....s non-excisable. We order accordingly. 23. Inasmuch as the issue on merits has been decided in favour of the appellants we are not giving any findings on the alternative issues of applicability of notification or on the point of limitation. Sd/- (Archana Wadhwa) Member (Judicial) 24. [Order per : Lajja Ram, Member (T)]. - With due respects to the Member (Judicial), I record separate order as under - The facts of the case and the submissions made by both the sides, have been summarised in the order proposed by the Member (Judicial) and are not being repeated. 25. The issue for consideration in this appeal filed by M/s. Bata India Ltd. (hereinafter referred to as 'M/s. Bata'), is the dutiability and marketability of the product referred to in the show cause notice dated 29-3-1995, as double textured fabric (para 17) and in the show cause notice dated 30-3-1995 as rubberised fabric (internal page 4). For obtaining the said product, a thin layer of rubber was sandwiched between two sheets of cotton fabrics. Shri Manhar Jagota, Manager - Supply and Transport, looking after all matters relating to Central Excise in the appellants' company, in....
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....g No. 59.05 of the Central Excise Tariff which did not weigh more than 1500 grams per square metre and in which rubber predominated by weight, enjoyed exemption from Central Excise duty. This exemption remained valid up to 28-2-1994 when it was rescinded vide Serial No. 167 of Notification No. 64/94-C.E., dated 1-3-1994. Under Notification No. 143/94-C.E., dated 7-12-1994 rubberised textile fabrics falling under Heading No. 59.05 of the Central Excise Tariff, if used in the factory of their production for the manufacture of exempted footwear falling under Chapter 64 of the Central Excise Tariff, were provided exemp­tion from duty. It is clear from this exemption notification that the rubberised textile fabrics are used for the manufacture of footwear. Earlier there was no exemption for such rubberised textile fabrics when they were used in the factory of their production for the manufacture of exempted footwear. By this exemption Notification dated 7-12-1994, exemption was so provided. This legal provision makes it clear that rubberised textile fabrics for use in the manufacture of footwear is a known and identifiable commodity. 30. It is thus clear from these provisions....
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....87 as under - FRICTION CLOTH (CHAPTER 40 OR 59) The question of the classification of Friction Cloth under the new Central Excise Tariff has been examined by the Board in consultation with the Chief Chemist. In terms of Chapter Note 3 to Chapter 59 of the Tariff, there are two conditions for classification of the product under sub-heading 5905.10 which applies to rubberised textile fabrics other than those of Heading No. 59.02. It is required under the said Chapter Note that the textile fabrics coated with rubber (i) should weigh below 1500 grams per square metre, or (ii) when it weighs more, should contain more than 50% by weight of textile material. In this view of the matter, such friction cloth would fall under Heading 59.05 except for such cloth in which the sheet material weighs more than 15 grams per square metre but contains less than 50% by weight of textile material. This particular category would fall under Chapter 40.05 which covers "plates, sheets, or strips of compounded unvulcanised rubber". Thus view finds support through Explanatory Note 3 under Heading 40.05 of the H.S.N. Accordingly, Friction Cloth weighing more than 1500 grams per square metre and containing m....
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.... the technical literature on record (refer page 7) of the order proposed by the learned Member (Judicial) that the vulcanization is a process to give the proper physical properties to the rubber compound and to make useful rubber articles. Thus, this process is applied either at the stage of rubber or at the stage of rubber articles. This process could not be relevant for the stage of production of rubberised textile fabrics which use rubber, and are usable in the manufacture of footwear. It is only at the stage of footwear that vulcanization may be relevant, and not at the stage of production of rubberised textile fabrics. 34. The Central Excise Tariff relating to textile fabrics is a multi stage tariff. Duties are levied at different stages. Under Chapter 59 of the Tariff, impregnated, coated, covered or laminated textile fabrics were classified. This duty was separate and in addition to the duty leviable on the base fabrics which were subjected to the process of impregnation, coating, cover­ing and lamination. Under Heading No. 59.05, rubberised textile fabrics, other than tyre cord fabric of high tenacity yarn of polyamides, were covered. Under Chapter Note 3 of Chapt....
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....brics in that case were being coated with rubber in the calendering machine. The rubber content predominated in weight of such clandered fabric and the fabric was said to be unvulcanised. In the present case also, almost similar process was being adopted [refer para 3 of the order proposed by the learned Member (J)]. 37. It is seen that the matter is entirely covered by the Calcutta High Court decision in the case of Union of India v. Bata India Ltd. - 1993 (68) E.L.T. 756 (Cal.). The issue for consideration was, whether the goods produced and named as herefit sheets, thermoplastic sheets and celluloid sheets from cotton and silk fabrics for use in footwear amounted to manufacture to attract excise duty under Item Nos. 19 and 22 of the erstwhile Central Excise Tariff. The High Court framed the question for their consideration in para 5 as "Whether the respondent is the producer or manufacturer of the said goods and as such liable to pay excise duty thereon or those products are only intermediary processes, used to complete the footwear." In para 15, the High Court observed that the niceties of the technicalities for the manufac­ture of the sheets were not the decisive tes....
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.... that reliance on the judgment by the adjudicating authority was not appropriate, do not flow from the ratio of the said decision of the High Court. The Hon'ble Supreme Court had dismissed the SLP filed by M/s. Bata and thus the decision of the High Court has become final and this Tribunal cannot go against the ratio of the said decision. In the Court Room Highlights, in 1993 (68) E.L.T. A158, the position has been reported as under - "Intermediate products also excisable but dutiable goods must be marketable - Actual sale not necessary - Civil suit no bar in excise cases The Supreme Court Bench comprising of Hon'ble Mr. Justice J.S. Verma and Hon'ble Mr. Justice S.P. Bharucha on 24-9-1993 has dismissed the Special Leave Petition S.L.P. (C) No. 6164 of 1993 filed by M/s. Bata India Ltd. against the judgment and order dated 12th January, 1993, passed by a Division Bench of the Calcutta High Court in Appeal No. 443 of 1978 (Union of India v. Bata India Ltd.) By its impugned order, the Calcutta High Court held that the three types of sheets, namely, herefit sheets, thermoplastic sheets and celluloid sheets from cotton and silk fabrics manufactured by the petitioner are excisable g....
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.... textile fabric was not a continuous stage of manufacture but was an independent process which all the manufacturers of footwear may not be undertaking as has been observed by the Calcutta High Court in the appellants' own case as referred to above. Thus, the various decisions discussed in paras 11 to 22 relating to other products, such as, rubber belting (etc.) are not applicable to the facts and circumstances of the present case. 42. On careful consideration of the matter, I find no merit in this appeal filed by M/s. Bata (India) Ltd., and the same is rejected. Sd/- (Lajja Ram) Member (Technical) DIFFERENCE OF OPINION In view of the difference of opinion between Member (Judicial) and Member (Technical), the matter is placed before the Hon'ble President for reference to the Third Member on the point whether the appeal filed by M/s. Bata (India) Ltd. is to be allowed as proposed by the Member (Judicial), or the appeal filed by M/s. Bata (India) Ltd. is to be rejected as proposed by Member (Technical). Sd/- Sd/- (Archana Wadhwa) (Lajja Ram) Member (Judicial) Member (Technical) 43. [Order per : V.K. Agrawal, Member (T)]. - In this referr....
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....hat the learned Member (Tech.) has referred to the statement of Mr. Manhar Jagota, according to whom, the object of putting the mixture in between two textile fabrics was to generate tensile strength, elasticity, waterproofness and abrasion resistance; that full statement of Mr. Jagota should have been referred to, as in the same statement he had clearly deposed that the shoe was vulcanized in vulcanizing chamber and without vulcanization process, it was completely useless inasmuch as rubber mixture was in raw form. He, further, contended that the excisability of the product is to be decided on the basis and in the light of the evidence adduced by the parties and the issue could never be made clear by legal provisions as has been assumed by the learned Member (Technical); that the decision in the case of Falcon Tyres v. CCE - 1996 (88) E.L.T. 450 and MRF Ltd. v. CCE - 1999 (105) E.L.T. 619, are not relevant as in these decisions the issue only related to classification of rubberized or calendered fabrics; that none of the disputes involved in the present matter were decided in these cases. He also mentioned that under Rule 57F, the partially processed inputs can vulcanization (sic)....
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.... (S.C.); Nirlon Synthetics and Chemicals Ltd. v. CCE - 1996 (86) E.L.T. 457, and Moti Laminates Pvt. Ltd. v. CCE - 1995 (76) E.L.T. 241 (S.C.). 46. Finally, learned Advocate mentioned that the issue involved is not covered by the decision of the Calcutta High Court as reported in 1993 (68) E.L.T. 756, read with Order dated 24-9-1993 of the Supreme Court as reported in 1993 (68) E.L.T. A158; that firstly, the said decision did not relate to the rubberized fabrics as it related to different products; that consequently, even though, several findings in the said judgment of the Calcutta High Court were against them, in the operative portion, the departmental appeal was dismissed; that they filed a Special Leave Petition in the Supreme Court which was pleased to take the view that since the operative part of decision was in their favour, it was not necessary to decide the points raised in the SLP; that the SLP was dismissed for these reasons by the Supreme Court; that due to this peculiar facts and circumstances, the SLP was dismissed and as Supreme Court neither considered nor decided the marketability aspect, the said decision of the Calcutta High Court cannot be relied upon. He....
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....re in warm and sticky condition is put onto three bowls calendering machine where it passes through upper two rollers so as to facilitate its simultaneous spreading in between two layers of fabrics. It is thus apparent that a new product emerges as a result of the process undertaken by the appellants irrespective of whatever the name is given to the product by the Department or the appellant. The test laid down by the Supreme Court in the case of Union of India v. DCM, 1977 (1) E.L.T. (J 199), is satisfied as a commercially different product having distinct name, character or use emerges as a result of the process undertaken by them. It is settled law that mere manufacture or mere mentioning of an item in the Central Excise Act is not sufficient to attract levy of excise duty. The product is required to be marketable i.e. it should be capable of being brought to the market or being bought or sold. It is the case of the appellants that the fabrics so obtained by them does not have much shelf life as it vary from 10 days to 4 weeks depending upon climatic conditions. It was held by the Supreme Court in Bhor Industries (supra) that "for articles to be goods, these must be known in the....
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....shelf life. Moreover, Division Bench of the Calcutta High Court in the case of appellants themselves as reported in 1993 (68) E.L.T. 756 (Calcutta) considered the excisability of goods namely herefit sheets, ther­moplastic sheets, and celluloid sheets. In the said matter, the processes undertaken were that cotton fabrics were treated in the stiffener solution and urea formaldehyde resin compounded with various other non-plastic ingredients like filter, oil and resin and dissolved in the water. The said solution was spread on the cotton fabrics. Some Cotton fabrics were treated with a solution of polystyrene compounded with plasticisers and other unsaturated elastomer dissolved in a blend of solvent and thereafter the compound or solution was spread on the cotton fabrics and dried. Artificial silk fabrics were coated with a suitable rubber compound dissolved in Petrol. Thereafter, the said fabrics were cut into small pieces, which was then reactivated with catalyst solution. Then these pieces were put on to the shoes and the same were then vulcanized. The pleas taken by the appellants in that matter were that the processing done by them did not make or trans­form fabrics int....