2014 (9) TMI 1074 - AT - Central Excise

Confiscation of goods - rubber sheets - imposition of redemption fine and penalty - classification of micro cellular rubber sheets - applicability of exemption Notification No. 80/95-CE dated 16.03.1005 - Chapter Note 4(a) of Chapter 40 of the Central Excise Tariff - drawing of samples - Held that - the issue of classification of micro cellular rubber sheets manufactured by another company M/s Popular Rubber Industries vs. CCE, Delhi-I 2004 (2) TMI 422 - CESTAT, NEW DELHI stands decided by Hon ble CESTAT. The facts of the present case are similar to those obtaining in the case of Popular Rubber Industries, where it was held that the material sent for test was of finished product which contained fillers, plasticisers, extenders and other agents, the presence of which is not permitted for the purpose of test as per Note 4(a) to Chapter 40. Explanatory Notes of HSN also provides that for the purpose of the test required by Note 4, a sample of the unsaturated synthetic substance or a substance of a kind specified in Note 4(c) (in the condition of unvulcanised raw material) is to be vulcanised with sulphur and then subjected to elongation and recovery test. Accordingly, in the case of substance containing materials not permitted by Note 4. the test is to be carried out on a sample which does not contain such materials or from which such materials have been removed. The explanatory notes also mentions that in the case of vulcanised rubber articles, which cannot be tested as such, it is necessary to obtain a sample of the unvulcanised raw material from which the articles are made, in order to perform the test. The classification of the impugned product is to be determined on the basis of test report only and as the proper sample has not been sent for the purpose of test, the impugned classification cannot be sustained and matter has to be remanded - in the present appeal also, while deciding the case denovo the Commissioner has relied upon the very same sample which was drawn out of the finished product and not drawn in accordance with the requirements of Chapter note 4(a) referred. Issue of applicability of Notification No. 18/95-CE dated 16.03.1995 - Held that - an exemption notification is required to be interpreted strictly and the onus is on the assessee who claims the benefit to establish that they satisfy the condition as specified therein. This very issue in respect of the impugned goods has however been decided by CESTAT in the case of Pololight Industries Ltd. vs. CCE, Vapi 2009 (2) TMI 493 - CESTAT, AHMEDABAD , where it was held that there is no evidence produced on record by the Revenue to establish that the sheets cleared by the appellant were actually put to some other uses, other than the one specified against the entry. The Revenue 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 - the product for domestic clearance has to be held as classifiable under heading 4008.21 - the appellant s are eligible for the benefit of Notification No. 18/95-CE dated 16.03.1995. Appeal allowed - decided in favor of appellant-assessee.

Summary

Issues: Classification of micro cellular rubber sheets and applicability of exemption Notification No. 80/95-CE dated 16.03.1995

Classification Issue:
The primary issue in this case revolves around the classification of micro cellular rubber sheets and the application of exemption Notification No. 80/95-CE dated 16.03.1995. The appellant argued that the classification was based on a sample drawn from the finished product, not in accordance with statutory requirements. The Tribunal found merit in the appellant's contention, citing a similar case involving Popular Rubber Industries. The Tribunal emphasized the necessity of drawing samples as per Chapter Note 4(a) of Chapter 40 of the Central Excise Tariff for accurate classification. The judgment of Papular Rubber Industries was deemed applicable, leading to the conclusion that the impugned goods should be classified under a different heading than initially determined.

Applicability of Exemption Notification:
Regarding the applicability of Notification No. 18/95-CE dated 16.03.1995, the issue centered on whether the appellant qualified for the exemption by demonstrating the use of goods in manufacturing soles, heels, or both for footwear. The adjudicating authority required evidence of eligibility, considering statements from customers indicating alternative uses. The appellant argued that sales to these customers were minimal and experimental, not indicative of actual use. CESTAT's decision in Pololight Industries Ltd. vs. CCE, Vapi 2009 was referenced, highlighting the necessity of interpreting the exemption strictly and placing the burden of proof on the claimant. The Tribunal analyzed the expression "used in the manufacture of" under heading 4008.21, emphasizing intended use over actual use for classification. The judgment underscored that the absence of evidence showing actual end use did not disqualify the appellant from the exemption, as long as the goods were of the type typically used for soles and heels.

In conclusion, the Tribunal allowed the appeals, setting aside the impugned order based on the detailed analysis of the classification issue and the interpretation of the exemption notification.