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TMI Blog2000 (4) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... istory of this matter breifly. He submits that the grey cotton fabrics procured from market are impregnated with Phenol Formaldehyde resin to obtain prepegs which are in roll form. Later, these are then laminated, i.e. a number of layers of prepegs are joined together under heat and pressure to form laminates. He stresses that while the prepegs is in rolls, the laminates in cut pieces or sheets. He submits that laminates were manufactured by them were classified by them under heading 39.26 carrying nil rate of duty. The jurisdictional Assistant Commissioner re-classified under 39.20, which was opposed by the Collector (Appeals) in their favour, who reverted the classification to that claimed namely 39.26. The Tribunal, thereafter, endorsed the classification of the laminates under 39.26 under 1997 (92) E.L.T. 674-Trib. Revenue's appeal in the matter is now admitted by Hon'ble Apex Court [reported in 1998 (100) E.L.T. A173], but no stay is granted. 4. Ld. Advocate submits that it is the contention of the department that the intermediate stage prepegs are dutiable under 39.20 because the final products namely laminates are exempted under 39.26. He submits that the order impugned h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more appropriately described as "sheetings" rather than sheet. Even the ISI also defines as sheets as a piece of plastic sheeting produced as an individual piece rather than in a continuous length, etc. He further submits that a similar view was taken by the Hon'ble Apex Court in 1996 (87) E.L.T. 3 in the case of Inarco Ltd. v. CCE wherein piping and tubings were distinguished from cut pieces as it referred to lengths of pipes and tubes and not cut pieces. Therefore, on merits Ld. Advocate concluded that in view of heading 39.20 specifically covering only sheets and not sheeting, it would not be applicable to the facts of this case. 7. Ld. Advocate, thereafter proceeded to submit on the non applicability of the extended period under Proviso to Section 11A(1) as sought to be imposed in the order impugned. He submits as follows :- (a) Each classification list filed during the disputed period indicated the process of manufacture and clearly recorded the emergence of Pre-Pegs as an intermediate product; (b) In classification list dated 1-4-1995, 10-4-1995 1-5-1995 as well as in classification list dated 25-5-1995 which are all available in the Paperbook. It has been cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not on the laminates which were finally emerging out of it in the premises of M/s. Finetech which was enjoying SSI exemption under Notification No. 1/93. He submits that after the laminates emerged from the heat press, no further finishing activity thereon was done by the appellants and they were cleared in such a semi finished form to Finetech Enterprises, who varnished the same and cut and trim the same to the required specifications as per market demand. Therefore, it cannot be said that no substantial manufacturing process was carried on at their end or that the goods which were sent after job work by the present appellants were in fully finished condition. Since the entire activity was subject to declaration of M/s. Finetech Enterprises as per Notification No. 1/93 wherein they had given the nature of further operations carried out by them and also because of the appellants' own letter to the Range Superintendent dated 26th Dec. 95 informing of the job work done by them, therefore there is no suppression involved in this case also. 10. Ld. D.R. submits that the question of classification of prepegs as well as of laminates are sub-judice with the Hon ble Apex Court as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot before the lower authorities, the record before us is also silent to the correctness of this position claimed. Under the circumstances, due to lack of information on facts in this behalf, the Tribunal is not in a position to consider clearly the contention raised. Necessarily, therefore, the matter on merits needs to be remanded to the original authority with the direction that he shall consider the submissions of the assessee on this ground on a de novo basis after ascertaining the factual accuracy of the fact of continuous length roll being claimed by the appellants and being subject matter of the appeal. While doing so, no doubt the Ld. Commissioner shall also be required to consider the two citations of judgments of the Hon'ble Apex Court noted above in this connection. 14. While the facts with respect to the determination of the merits of the case may not be on record, it is not so as far as the question of limitation is concerned. We have already noted the various communications sent by the appellants to the departmental officers which clearly showed that the following information was available with the assessing officers in regard to the assessment to duty of Prepegs : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue requiring our consideration is the demand for Rs. 7,05,778/- on Prepegs manufactured on job work basis by the appellants and removed to M/s. Finetech Enterprises. We find that since the demand is on prepegs and for the consideration on merits thereof the matter has already been remanded above to the Ld. Commissioner, therefore for consideration on merits, this part of the matter also is to be remanded to the Commissioner. As far as the question of applicability of the extended period is concerned in this case, the same reason as indicated above apply in this case and the extended period would not be applicable. 17. In view of the aforesaid analyses and findings, the order impugned is set aside including the imposition of penalties. Instead, the matter is remanded for de novo consideration by the Ld. Jurisdictional Commissioner of Central Excise in terms of the above noted directions for deciding the classification of Pre-pegs on merits as well as for computing the amount of duty which may be demandable for a period of 6 months. The Ld. Commissioner shall give opportunity of hearing and then shall proceed to issue a speaking order in the matter. The appeals are allowed by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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