2019 (9) TMI 1543

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....wherein all the demands along with interest and equal amount of penalty was confirmed under Section 11AC of the Central Excise Act, 1944. Some personal penalties on the Directors were also imposed. The respondent manufacturer filed an appeal against the order in original dated 7-8-2015 before this Tribunal. The Tribunal in its first round of litigation decided the matter vide Final Order dated 16-11-2017. This Tribunal in its order dated 16-11-2017 had decided to send the matter back for de novo adjudication giving following instructions :- "4. After hearing both the parties and on perusal of records, it appears that the identical issue has come up before this Tribunal in the case of Capstan Rubber India and Ors. v. CCE & ST, Agra (Final Order Nos. 70892-70895/2016, dated 15-9-2012 where it was observed that - "7. Heard the rival contentions. We find that the reliance is placed on various test reports. The Learned Counsel for the applicants has emphasised that the test report dated 8-5-2013 gives a report that the both samples are Non-cellular as well as resin based rubber sheet. Non-Cellular Rubber sheet falls under Chapter 4008 21 whereas resin based r....

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....is of above observations, the Learned Adjudicating Authority has dropped the proceedings against the appellant. The department is before us against the above referred Order-in-Original on the ground that the Learned Adjudicating Authority has not understood the process of classification of subject goods correctly and thereby have reached to wrong classification of the product and thus dropping the proceedings against the respondent manufacturer was legally wrong. The relevant extract of the appeal is reproduced herein- below : '5.3 The adjudicating authority has concluded that "Non Cellular Rubber Sheet" will merit classification under 4008 21 10 and not under 4008 29 10 as Tariff Entry 4008 21 00 is more specific that 4008 29 00 which is general in nature. The above conclusion appears to be wrong as there is no specific heading such as 4008 21 00 or 4008 29 00. Description of Tariff Heading 4008, 4008 21 and 4008 29 is as under : Tariff Item Description of Goods Unit Rate of Duty 4008 Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber       -- Of cellular rubber :   &n....

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....annot be any question of classifying into other category. On careful examination of Heading 4008, it is quite clear that there are two broad categories at single '-' level, i.e. (1) "- of cellular rubber" and having sub-heading 4008 11 to 4008 19 90 under this category and (2) "- of non-cellular rubber' and having headings 4008 21 to 4008 29 90 under this category. Further, the second category of single "-", i.e. "- non-cellular" rubber' is further sub-divided into two categories at "-" level, i.e. 4008 21 "- Plates, Sheets and Strips" and 4008 29 "- other". It is under 4008 21 the sub-heading 4008 21 10 exist at "-" level. It is under different 4008 29 that sub-heading 4008 29 10 exist at "-" level. Therefore, it is erroneous on the part of adjudicating authority to conclude that once the product is non-cellular rubber, it will fall under 4008 21 10 and not under 4008 29 10. As pointed out, non-cellular rubber items can fall under 4008 21 as well as 4008 29. Therefore, whole premise of adjudicating authority is not based on correct understanding of scheme of classification. 5.5 The adjudicating authority has passed the OIO by simply relying on the basis of certificat....

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....enue's entire case is based upon only one fact that the appellant have not been able to show that the sheets have actually been used for the specified purposes. We note that there is no such requirement in the entry to produce any end used certificate for the purpose of claiming the coverage. In the absence of any such requirement in the tariff itself, such a condition cannot be introduced by the Revenue. Wherever Legislature intended to grant benefit based upon the actual end use, proper guidelines stand prescribed. This establishes that insistence on end use certificate is not warranted when there is no such specific statutory requirement. As such, even in the absence of any evidence showing the actual end use of the goods, the same would be classifiable under heading 4008.21, as long as they are of the kind to be used for soles and heels. 10. The appellants have also relied upon various technical literature and other evidences to establish that the rubber sheets being manufactured by them are of a kind used in the manufacture of heels, soles for footwear. However, we find that such reference or reliance may not be required inasmuch as the Revenue have themselves gr....

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....We agree with the Ld. Advocate that in view of our foregoing discussion, the product for domestic clearance has to be held as classifiable under heading 4008.21. The impugned Order is accordingly set aside and appeal allowed with consequential relief to the appellant. 13. Inasmuch as we have decided in favour of the assessee on the main issue of classification, we make it clear that the other grounds are not being considered by us." 7. The above decision of the co-ordinate Bench of this Tribunal has already laid down a principle that if the principal use of non-cellular rubber plates, sheets and strips are in manufacture of soles, heels, or soles and heals combined for footwear, same need to be classified under specific heading which have been provided under Chapter sub-heading 4008 21. 8. Before proceeding further, let us have a look at the test report relied by the Department. The test report given by Indian Rubber Manufacturer Research Association (IRMRA) is reproduced hereinbelow : Chemical and Physical properties of product. Sr. No. Test Observed value A Polymer type by FIR Blend of NR & SBR rubber B Glass transition tem....

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....at the classification given by him under Central Excise Tariff Heading No. 4008 29 10 is in contradiction to the findings of the test report since the test report very categorically says that it is of non-cellular rubber in the form of sheets. These sheets as per the claim of respondent-manufacturer are primarily used in manufacture of soles, heals or soles and heals combined for footwear, we are of the view that the correct classification of the product as discussed above falls under CETH 4008 21 10, which have rightly been classified by the respondent-manufacturer. The Co-ordinate Bench of this Tribunal in the case of Pololight Industries Ltd. (supra) had already held a principle that if the primary use of the product is for the manufacture of soles, heels or soles and heels combined and the product is of non-cellular rubber, same need to be classified under CETH 4008 21. In view of the this, we have no doubt in our mind that the correct classification of the product is under sub-heading 4008 21 10. 11. We also find that the Commissioner, Customs & Central Excise & Service Tax, Agra has also classified non-cellular rubber sheet meant for footwear industries for manufactur....