TaxTMI 
TaxTMI 
2008 (7) TMI 827
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.... list with effect from 1-4-1995 claiming classification under chapter heading No. 4016.99 instead of Chapter heading No. 4008.21; that against their claiming, the Department issued SCNs stating that their products were rightly classifiable under chapter heading No. 4008.21 and not under chapter heading No. 4016.99 as claimed by the appellants; that both the SCNs were adjudicated by the Assistant Commissioner, Satara and held that the appellants' items were rightly classifiable under chapter heading No. 4008.21 as per Chapter Note 9 of Chapter 40 which says that chapter heading No. 4008.21 will also apply to the plates, sheets or strips whether or not cut into shape and the surface worked or further worked, so as to fit for resoling or repairing or re-treading of rubber tyres and while passing the orders, the Assistant Commissioner also placed reliance on the decision of the CEGAT in the case of MRF Ltd. v. Collector of Central Excise [1993 (67) E.L.T. 968) (T)]; that being aggrieved by the above order, both the appellants appealed before the Commissioner (Appeals) who vide his OIA No. P/7-8/1996 dated 18-12-1996 and OIA No. P/27/1997 dated 21-1-1997 in the case of Pang Rubber Produ....
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....l pieces are stuck to each other by using a suitable adhesive and the whole patch assembly is then covered on both sides with polyester films, that the assembly is then cured/vulcanized in hydraulic press, that the extra portion of the polyester portion of polyester film is cut off and the patch is a finished product in a 'ready to use' condition of peculiar shape of old size for repairing of tyres.; (e) that the Board reiterating the instructions of 1962, clarified vide para 5 of the Circular that the rubber products used for repair of tubes or tyres do not attract duty and rubber product in the form of plates, sheets and strips which are used for retreading of tyres or repairing of tyres alone were dutiable under item 16A (2) and the criss-cross rubber patches were not in the form of plates, sheets or strips and therefore, were never subject to duty under item No. 16A(2) but only under Tariff Item No. 68; (f) that after the introduction of the Central Excise Tariff Act, 1985, plates, sheets and strips, falling under item 16A (2) are to be classified under sub heading No. 4008.21 and the appellants' articles namely vulcan....
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....ellants; (o) that in MRF case, the Department wanted that the criss cross rubber patch should be classified under tariff item 16A (2) whereas the MRF contended that criss cross rubber patches cannot be classified under the said heading as a plate, sheet or strip and also in view of the process of manufacture, it was classifiable under heading tariff 68 and accordingly, the Tribunal upheld the contentions of the MRF case; (p) that the CEGAT in MRF case has held that the criss cross patches are not plates, sheets and strips and it was understood that no appeal was filed by the Department against the above decision before the Hon'ble Apex Court; (q) that sub-heading No. 4008.21 refers to plate, sheet or strip and since patches are not plates/sheets/strips as held in MRF case, it cannot fall under sub-para 3 of Chapter Note 9 or under sub heading 4008.2 1; (r) that the classification of criss cross rubber patches for tyres all over the country is only sub-heading No. 4016.99; (s) that the appellants had provided copies of OIO No. V/40/30/ 91/94-CF dated 29-11....
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....urers in the aforesaid cases" 4. In view of the above directions, I visited the factory premises of M/s. Santha Raghu Industrial Products on 30-6-2008 and M/s. Anand Engineering Works on 2-7-2008 and the appellants' premises on 21-7-2008. 5. PH was granted on 25-7-2008 at 12.15 PM. Shri Vishwanathan, Advocate, duly authorized by the appellant company appeared before me. Despite intimation, none appeared from Departmental side. As requested by the Advocate, a common proceedings for both the appellants were held. During the hearing, in addition to submitting synopsis, he also briefly narrated the whole issue as well as the submissions made in the Grounds of Appeals made before the Apex Court. He also produced samples of the products manufactured by his clients during the hearing. 6. I have gone through the case records, including the record of PH and seen the samples obtained during my visits and also the samples produced by the Advocate during the hearing. It has already been stated that both the appeals are taken as per the directions of the Apex Court. As both the appeals cover the same issue, I propose to pass a common order for both the appellants. The lo....
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....tore and Dindigul under Tariff heading No. 4016.99 and only these appellants are treated differently. 6.1 On going through the history for the Tariff Item for tread rubber in the form of plates, sheets and strips and criss-cross rubber patch, it is found that the tread rubber in the form of plates, sheets and strips were classified under tariff item No. 16A(2) of erstwhile Central Excise Tariff and after the introduction of Central Excise Tariff Act, 1985, the same product was brought under Tariff item No. 4008.21. The product in question was covered under tariff item No. 68 prior to the introduction of the Central Excise Tariff Act, 1985 and after the introduction, it was brought under 4016.99. The whole problem started due to the amendment to Note 9 of Chapter 40 vide sub para 3. According to the said amended para, tariff sub heading No. 4008.21 was applied to plates, sheets and strips whether or not cut to shape and surface worked or further worked so as to render them fit for resoling or repairing or re-treading of rubber tyres. Basing on the above amendment, the original authority classified criss-cross rubber patches under sub heading No. 4008.21 and also placed relia....
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.... E.L.T. 1285 (Tri. Chennai)]. In the above case also, the CEGAT has held that the material emerging in flat form can be clearly be considered as sheets and strips which have not been formed into or cut into a particular shape and further worked on the surface of the sheet. The appellants have sought to place a restricted meaning on the terms 'plates and sheets' and have urged that these have to be considered in contradiction to profile shapes. The Tribunal observed that sub para (3) of Chapter Note 9 was introduced in 1990 for the limited purpose of including material which is manufactured for resoling or repairing or re-treading of rubber tyres under sub heading No. 4008.21. So long as the material could be viewed as one in plates, sheet form or strips and same has been surface worked or further worked or cut to any shape to make it suitable for that purpose, then even if the material is considered as profile shape in profile form, the same would still figure within the ambit of sub heading No. 4008.21". The above two decisions clearly reveal that the product before the CEGAT in the case of MRF v. CCE [1993 (67) E.L.T. 968] was different from the product, which is under dispute. I....
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.... upon by the appellants before the Apex Court. It is seen that the Assistant Commissioner, after going through the process and also basing specific reliance on the decision of the Hon'ble Tribunal in the case of MRF v. CCE [1987 (31) E.L.T. 71] and the decision of the Assistant Commissioner, Central Excise, Coimbatore Division-I in the case of M/s. Santha Raghu Industrial Products (which was also one of the assessees relied before the Apex Court), classified the product in question i.e. 'criss-cross rubber patches' under tariff sub heading No. 4016.99 and dropped further proceedings. He further held that basing on the reliance of the said MRF case, the sub heading No. 40.08 covers only plates, sheets, strips, rods and profile shapes which could be used in the manufacture of some other articles and hence 'criss cross rubber patches' an article of unvulcanised rubber, will not merit classification under heading 40.08. Enquiry with the Divisional Assistant Commissioner and the Commissioner revealed that the above order was not disputed further by the Department and the appellant namely, M/s. Anand Engineering Works continue to classify the product under sub- heading No. 4016.99. 6.....