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TMI Blog1994 (5) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... which are produced by dipping Nylon or Rayon Cord fabrics in a solution of Resorcinol Fomaldehyde and Latex. The solution that is used for this purpose is generally known as Resourcinol Formaldehyde Latex mix or `dip solution' (hereinafter called RFL Solution). The RFL solution is manufactured by the appellants in their factory and captively consumed for the purpose of dipping. The appellants filed a classification list classifying RFL solution under sub-heading No. 4002.00 as "Synthetic Rubber in Primary Form". The Assistant Collector after hearing the appellants passed an order approving the Classification of the product under sub-heading 4002.00. The appellants filed an appeal before the Collector, Central Excise (Appeals), Madras on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs -- 1990 (50) E.L.T. 190 Collector of Central Excise v. Navdeep Chemicals (P) Ltd. -- 1988 (37) E.L.T. 62 Cynamid India Ltd. v. Collector of Central Excise, Bombay -- 1984 (15) E.L.T. 86 Associated Matters Pvt. Ltd. v. Collector of Customs -- 1990 (50) E.L.T. 633 Continuing his submission the Ld. Counsel submitted that in the case of CEAT Tyres of India Ltd. v. Union of India and Others, reported in 1987 (30) E.L.T. 857, the Bombay High Court has held that Dip Solution is not excisable since it is not marketable on account of its short shelf life. He added that in the case of Madura Coats Ltd. v. Asstt. Collector of Central Excise, reported in 1990 (48) E.L.T. 321, the Madras High Court has also held that dipping s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court Judgment in the case of CEAT Tyres and observed that it did not have direct bearing on the issue since the product under consideration in that case was dip solution which inter alia included rubber latex. Shri Arora also referred to the Tribunal's order C-2/85 in the case of M/s. Flat-o-VCC Traders v. Collector of Central Excise, Madurai, wherein it was held that in preparation of dipping solution, resorcinol formaldehyde resin is formed which is excisable. He submitted that it is now well settled that while examining the question of marketability each product has to be considered separately. In support of his contention, he cited the judgment of the Supreme Court in the case of A.P. State Electricity Board v. Collector of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said RF Latex Solution should not be classified under sub-heading No. 3909.50. In their written reply to the Show Cause Notice and also during the personal hearing the appellants claimed that the major content of the product in question being `synthetic rubber' it was correctly classifiable under sub-heading 4002.00. In his order dated 26-8-1987 the Assistant Collector accepted the appellants' stand and held that the disputed "RF Latex Solution" was classifiable under sub-heading 4002.00. Even though the order passed by the Assistant Collector was entirely in the appellants' favour and they had no cause at all to be aggrieved by the said order, they preferred an appeal before the Collector, Central Excise (Appeals) on an entirely new gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use for feeling aggrieved and an appeal to Collector (Appeals) against such an order under Section 35 would not be maintainable. Para 16 of the said decision being relevant is reproduced below :- "16. The entire effort in the appeal before the Collector (Appeals), has been to persuade him to reopen the classification of flush doors in the classification lists filed from 1972 onwards which Collector (Appeals) has refused to do. Collector (Appeals) acquires jurisdiction under Section 35 to hear an appeal by any person aggrieved by any decision or order passed under the Act by a Central Excise Officer lower in rank than a Collector of Central Excise. The view taken in the impugned order that there was no cause for the appellant to feel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for refund, which could be considered by the authorities under Section 11B any refund would have been restricted to the period of six month. It is interesting that even though Collector (Appeals) had himself recorded, while disposing of the appeal as not maintainable, the appellant could lodge a claim for refund of duty before the appropriate authority. This appears to have been the second advice to the appellant of which he has taken no notice. During the reply, Shri Sridharan stated that the rejection of the averments in para 5 of the counter affidavit by the High Court, meant that the High Court had apparently considered it and decided that an appeal should be filed to the appropriate Appellate Authority. Carefully looking into para ..... X X X X Extracts X X X X X X X X Extracts X X X X
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