9911796707
TMI Blog1989 (2) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, cinema seat cushions, scooter seats, motor cycle seats, bus seats, car seats etc. They were filing classification lists from time to time in respect of all the products manufactured by them under Item 16A(1) of the Central Excise Tariff and the same were approved by the proper officer of Central Excise. The Company filed two revised classification lists No. 5/80 and 6/80 both dated 9.4.1980 seeking classification of the scooter/motor cycle/car/bus seats as motor vehicle parts under Tariff Item 34-A for the period from 29-5-1971 to 10-5-1979 and under Item 68 of the Central Excise Tariff for the period from 11-5-1979. Prior to this, they classified these products under Tariff Item 16A(1) and paid Central Excise duty under that Tariff Item without raising any protest. As the scooter/motor cycles/bus/car seats are primarily rubber products classifiable under Tariff Item 16A, and the Tariff Item 68 is a residuary Item, which will attract only if the products are not classifiable under any other Tariff Item, the Company was informed by the Assistant Collector of Central Excise vide his letter C. No. V/16A/3/22/80 dated 29-7-1980 that the said goods were correctly classified under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oam sponge" in specific shape and were, therefore, prima facie covered under the specific entry 16A(1) of the Central Excise Tariff. It also appeared to the Central Government that in order to become identifiable motor vehicle parts the impugned goods had to be affixed to a metal plate and thereafter covered by leather or rexin. It, therefore, appeared to the Central Government that the Appellate Collector erred in classifying the impugned goods under Item 34-A of the Central Excise Tariff. The Central Government were, therefore, tentatively of the view that the impugned order-in-appeal was not proper, legal and correct and they proposed to set aside the same and restore the order-in-original dated 28-2-1981 passed by the Assistant Collector, or pass orders as deemed fit after considering the submissions made by the respondents. Accordingly, a show cause notice was issued by the Central Government on 27-2-1982 asking the respondents to show cause against the proposed action. The proceedings initiated by the Central Government in that show cause notice stood transferred to this Tribunal for being disposed of as an appeal consequent on the setting up of the Tribunal with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of the Appellate Collector was not legal and proper. The Central Government had, therefore, no jurisdiction to exercise the power under Section 36(2) of the Central Excises and Salt Act, 1944 (as it then existed). In support of this argument he has relied on the decision reported in 1986 (26) E.L.T. 471 (Cal.) in the case of Gonterman Peipers (India) Ltd. v. Additional Secretary to the Government of India, in which it was held that for assuming jurisdiction under Section 36(2) of the Central Excises and Salt Act, 1944, there must be sufficient material on the record to show that the order sought to be revised was not correct, legal and proper. He has disputed the facts stated in the Order No. 569/88-D, dated 22-8-1988 and has said that the said decision of the Tribunal should not stand in the way of deciding the present case in favour of the respondents. He has argued that there is no res-judicata in tax matters and on this point he has relied on the judgments reported in AIR 1967 S.C. 762, 1987 (10) E.T.R. 792 (Tribunal) and 1987(30) E.L.T. 562 (Tribunal). On merits of the case, the learned Advocate has argued that the impugned latex foam seats are manufactured by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These cushions are not used as bus/car/motor cycle seats in the naked form in which they are cleared from the factory. Rexin or leather covers are put on the latex foam sponge cushions for the purpose of using them as bus/car/motor cycle seats, which is admitted in Para 20 of the reply to the review show cause notice and also by the learned Advocate during the hearing. The latex foam cushions as manufactured by the respondents are not ready for use as motor vehicle parts as such. End use is also not relevant for deciding classification as already held in the judgments reported in (i) 1983 E.L.T. 1566 (S.C.) - Dunlop India Ltd. & Madras Rubber Factory Ltd. v. Union of India and Others (Para 42), (ii) 1985 (21) E.L.T. 3 (S.C.) - Indian Aluminium Cables Ltd. v. Union of India and Others (Paragraph 13), (iii) 1984 (18) E.L.T. 141 (Bom.) - Sainet Pvt. Ltd. and Another v. Union of India and Another (Paragraph 18) and (iv) 1987 (27) E.L.T. 273 (A.P.) - Golden Press v. Deputy Collector of Central Excise, Hyderabad& Another Paragraphs 13&17). Exactly similar issue as in the case came for detailed examination before this Tribunal, in the respondents' own case and this Tribunal, vide Paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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