2014 (12) TMI 161

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....Excise (Rs.) Penalty Earlier OIO No. & dated CEX/BMR/SCN/43/JKI/97-98/1228 dated 3.3.1997 August 1996 to February 1997 1,93,64,071/- Rs.10 lakhs under Section 173Q of CEA, 1944 OIO No. 132-134/CEX/DEMAND/AC/98 dated 31.3.98   CEX/BMR/SCN/59/JKI/97-98/1228 dated 26.9.1997 March 1997 to June 1997 1,15,86,658/-     CEX/BMR/SCN/03/JKI/98/1228 dated 31.2.1998 July 1997 to December 1997 1,83,75,905/-     CEX/BMR/SCN/JKI/98/993 dated 31.8.1998 January 1998 to May 1998 1,45,58,418/- Rs.20 lakhs under Section 173Q of CEA, 1944 OIO No. 859/CEX/DEMAND/AC/98 dated 28.12.98   The last column of the above table refers to the earlier orders-in-original....

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....s to give a finding both on marketability as well as on the manufacture of the product and decide the matter accordingly in the light of the judgment of this Court in MRF Ltd. (Heading 59.05 became 59.06) 3(1) The appellants have argued that the Commissioner (Appeals) travelled beyond narrow compass laid down by the Supreme Court inasmuch as they considered the issue in relation to the particulars of dipped tyre cord fabrics and not rubberised tyre cord fabrics. 2) The 'dipped rubberised tyre cord fabrics' is not marketable as it is not stable product and becomes stable only after rubberisation and vulcanisation. As a result of rubberisation, rubber becomes pre-dominant making it classifiable under Heading 59.06. 3). The Commiss....

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....rd fabrics only after rubberisation by passing through a calendar and applying rubber compound on both side of warp sheet on sophisticated machines. Revenue also argued that the impugned product is marketable as is evident from the fact that the appellants own unit used to transport by road the said product on payment of duty for use at their sister unit situated several hundred kilometres away. 6. We have considered the issue. It is evident that the impugned product is not rubberised cord fabric obtained after stage 2 mentioned above but one which is obtained after dipping the fabrics into the composite mixture of rubber in the form of latex and Resorcinol Formaldehyde (Vinyl Pyridine Latex in short V.P. Latex or SBR Latex/Styrene Butad....

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.... in para 13(c) of the impugned order. Thus the appellants contention that the impugned goods were rubberised tyre cord fabrics obtained after stage 2 is an afterthought contrary to the evidence on record. As the rubber content after stage-1 (but before stage-2) is not pre-dominant, the impugned goods (which before rubberisation (stage-2) remain dipped tyre cord fabrics and do not become rubberised tyre cord fabrics of Chapter Heading 59.05 (now 59.06)] would fall under 59.02 as per the analysis of the Supreme Court in its remand order. 7. Regarding the marketability, it is seen that the case laws quoted by the appellants pertain to product other than the impugned goods and the Supreme Court observations with regard to transportability/st....