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TMI Blog2000 (6) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... on the appellant Nirmaljeet Singh Panna in appeal E/3498 under rule 209A. He also imposed a fine of Rs. 5,00,000/-. Today applications for stay are filed under section 35F of the Central Excise Act. During the course of the argument it was found that the appeals themselves could be disposed of on a short point and the matter is sought to be remanded. Therefore, the appeals themselves mere taken up after waiving pre-deposit and with consent of both sides. 2. The appellant in Appeal no. E/2932 is engaged in the manufacture of industrial power transmission belts. These belts are used for transmission of power. The belts are normally made of (a) nylon leather, or (b) nylon and rubber, or (c) nylon and textile fabric. The appellant filed classification list for nylon leather belt under sub-heading 4201.90; for nylon rubber belt under sub-heading 4010.90 and for nylon textile fabric under sub-heading 5908. The issue involved in this case is what is classification of the above products? The classification lists were filed and at a particular point of time they have been approved. Later on the products were sent to Deputy Chief Chemist for testing. He in his result has held as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation issued in February 1995, Amending Supplement No. 14, where in respect of transmission belts he invited our attention to the said rulings which reads as under :- "3921.90 or 3926.90 - Transmission or conveyor belts or belting, consisting of a band (composed of one layer, or of a number of super-imposed layers glued together) of plastics, covered on one or both faces with a band of chrome leather serving solely to increase the adhesion." He also invited our attention to paragraph 5 of the judgment of the Tribunal in the case of Wash Udyog, Sawantwadi - 1987 (31) E.L.T. 73 which reads as under : "Interpretative Rule 3(b), which is the relevant rule applicable in this case, does not lay down the principle of classification on the basis of predominant content but on the basis as to which of the component gives the goods their essential character. Thus, it is not the bulk but the property of giving the essential character which is the criterion applicable to the case before us ......". He, no doubt, invited our attention to the test certificate of National Test House but states fairly that it may not help his case. He also invited our attention to the extracts from the book Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drives have one chrome leather friction face and a light durable textile cover on the other Multi-pulley drives have chrome leather on both driving faces giving a super-efficient, low cost, solution to a complex problem." We asked a question to Shri Sridharan whether these points were brought to the notice of the Commissioner. He fairly stated that these were not brought to the notice of the Commissioner, but he vehemently argued that even when it is not brought to the Commissioner he ought to have noted the judgment of Tribunal in Wash Udyog, Sawantwadi (supra). He waived on emphasis the fact that the Rules of Interpretation has to be interpreted by the adjudicating authority. 5. The main thrust of the case is the finding given by the adjudicating authority as contained in para 87 of the adjudicating order. In the adjudicating order at paragraph 87 it has been held as follows : "As regards the allegation regarding misclassification of the product "Nylon Sandwich Blelts" manufactured by M/s. Transcon & Polybelts, I hold that these belts are made up of one or more combination of material such as leather, textile fabrics and coated fabrics wherein nylon sheet was used as cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have suppressed the facts and have misled the deptt. by filing wrong classification list with an intent to evade the payment of Central Excise duty and proviso to section 11A(1) of Central Excise Act, 1944 is applicable in this case and I hold accordingly." 6. The Commissioner being the adjudicating authority has quoted that the Deputy Chief Chemist has opined that the belt would merit classification as articles of materials used. He states further that it is clear from the test result that the appellants M/s. Transcon in Appeal No. 2934 and M/s. Polybelt in Appeal No. 2933 have suppressed the facts and misled the department in filing wrong classification list with an intent to evade duty. It is true that in the said paragraph the Commissioner has taken note of the deposition made by Manager-Excise. But one should make a note of the interesting arguments made by Shri Sridharan on a query made by the bench that supposing the Excise Manager had answered in an opposite way, would the department take the words of the Excise Manager. That is a very interesting point. In our view the classification has to be done by the adjudicating authority but the adjudicating authority may no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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