9911796707
TMI Blog1996 (9) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are engaged in the manufacture of paper tubes. The appellants are availing the benefit of inputs duty under the Modvat scheme and filed a declaration on 31-3-1994 declaring adhesive against serial No. 3 classifiable under sub-heading 35.05. The department alleged that the appellants availed Modvat credit on Vimsol under sub-heading 3905.10 which was not mentioned in their declaration filed under Rule 57G and therefore issued a show cause notice to the appellants on 28-4-1994 asking them to explain as to why the Modvat credit amounting to Rs. 30,802/- for non-submission of declaration prior to 19-12-1994 and for not following the procedure for goods received back for repairs after clearance should not be denied to them. 3. The seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that alternative plea was that in case the earlier declaration filed on 31-3-1994 is not taken as a declaration in respect of Vimsol then there case is fully covered by Rule 57G(5) in respect of invoice No. 162, dated 4-10-1994. The ld. Counsel cited and relied upon the judgment of Apex Court in the case of Atul Glass Industries Limited - 1986 (25) E.L.T. 473 (S.C.) for common parlance test holding that in case the goods are known by people who consume them or who deal in them by a particular name then that name is to be accepted for identifying that product. The ld. Advocate submits that product in dispute is known as adhesive by the people who deal in it and by the people who use it and therefore the declaration was correctly made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the decision cited and relied upon and prays that the appeal may be allowed. 7. Shri Nanak Chand. ld. JDR submitted that adhesive is generic term and includes a number of products classifiable differently. He submitted that Vimsol is the product in dispute. The ld. JDR submitted that according to the duty paying documents Vimsol was classifiable under sub-heading 3905. 10. He submitted that the appellants had shown the classification sub-heading 35.05. The ld. JDR therefore submitted that all products falling under different chapter headings cannot be simply described by common name in so far as Central Excise classification etc. is concerned. He submits that the fact remains that neither in description column the product was descri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad given correct description inasmuch as Vimsol for their purpose was an adhesive and was known in the market as also by the people who use it. In support of this contention the ld. Counsel cited and relied upon the judgment of the Apex Court in the case of Atul Glass Industries. As against this depatment s contention is that Vimsol may be an adhesive but is different from other adhesives inasmuch as it was classifiable under sub-heading 3905.10 whereas other adhesives declared by the appellants were classifiable under 35.05. According to the department this separate classification clearly shows that adhesive is a generic term and includes different products. 11. On careful consideration of these contentions we observe that declaration de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or issue that was agitated in respect of this show cause notice was that the appellants were denied natural justice inasmuch as the opportunity of being heard was not given to the appellants. It was argued that this was mandatory requirement. I find that a show cause notice was issued to the appellants and in the show cause notice it was specifically set out that in case the appellants want to be heard they may say so. In reply to the show cause notice the appellants did not indicate anything nor did they specifically waive their mandatory right of personal hearing. I find that on perusal of the show cause notice it was specific in so far as personal hearing is concerned. I also observe that personal hearing was granted at the appellate sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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