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TMI Blog2009 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemical Examiner and the assessee’s admission of transporation and transportability of the product in question clearly distinguish the same from the rubberised fabric, besides that compounded rubber has much longer shelf life and even can be transported from one unit to another – Hence, the point that the compounded rubber is a marketable and therefore, excisable is well settled - The question of seeking exemption can arise only after the product is admitted to be excisable one and thereupon the assessee can avail the benefit under an exemption notification. The question of exemption from liability of excise duty can arise only in case of excisable goods. In other words, the question of claiming exemption can arise only in the case of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under the said notification in relation to the compounded rubber till February 1994. 4. On 1-3-94, a Notification No. 64/94-C.E., dated 1-3-94 came into force which rescinded the Notification No. 152/87 and consequently, the compounded rubber was subjected to excise duty. However, pursuant to subsequent Notification, the earlier position as was in force under the Notification No. 152/87 was sought to be restored and consequently, the product enjoyed the exemption from the payment of excise duty from 17-3-94. 5. The appellants were served with a show cause notice dated 10-5-94 requiring them to show cause as to why the excise duty to the tune of Rs. 1,54,344.96 should not be demanded on the compounded rubber manufactured during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 775/04. 7. At the outset, it is to be noted that the Commissioner (Appeals) has enumerated the grounds on which the appellant sought to canvass before him and the same are enumerated in para 3 of the impugned order. The same merely refers to the issue of marketability of the product. However, in para 5 which relates to discussion and finding on the points which were sought to be raised by the appellant before the Commissioner (Appeals), it is recorded that "the cycles and cycle rickshaw tyres are manufactured in a continuous process by mixing reclaimed rubber/natural rubber and chemicals etc. and compounded rubber so manufactured during this process is not marketable as such". Undoubtedly, therefore, the said observation does disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansporation and transportability of the product in question clearly distinguish the same from the rubberised fabric, besides that compounded rubber has much longer shelf life and even can be transported from one unit to another. The point that the compounded rubber is a marketable and therefore, excisable is well settled by the said decision of the Tribunal in Ralson (India) Ltd. case. 9. Apparently, the said decision was not brought to the notice of the Tribunal in Syndicate Tyres. Besides, a plain reading of the order dated 28-1-2009 discloses that in the facts and circumstances of the said case, it required certain evidence to be produced by the party and therefore, in order to afford an opportunity to the party to produce the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he compounded rubber to be excisable product and that is why they were claiming exemption. It was only because the time gap between two dates pertaining to the exemption notifications in the month of March, that the exemption was not available to the said product. The dispute relating to marketability of the product in the circumstances of the case is purely after thought. There was no change either qualitatively or otherwise in the resultant product manufactured in the factory of the appellant i.e. the compounded rubber during the period from 1-3-94 till 27-3-94. The product remained the same as it was prior to 1-3-94 or after 27-3-94. That is being undisputed fact, there is no scope for remand. The issue can be decided on the materials av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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