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TMI Blog2010 (6) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... filed for the waiver of pre-deposit of the following amounts : (i) Basic Excise Duty Rs. 10,42,281/- and Additional Excise Duty Rs. 3,25,713/- for the period from January 2002 to December 2002 (ii) Basic Excise Duty Rs. 7,98,238/- and Additional Excise Duty Rs. 2, 49,449/- for the period January 2003 to December 2003 under Section 11A of the Central Excise Act, 1944. (iii) Penalty Rs. 25,000/- under Rule 25 of the Central Excise Rules, 2002 (iv) Interest 2. The issue involved in this case is regarding the excisability of the goods manufactured by the appellant. The appellant procured polyster yarn and weaves them on special looms resulting in the manufacture of special woven fabric in two layers to achieve tubular configu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as indicated in the impugned orders is not disputed. It is his submission that the excisability of impregnated special woven fabrics arising at the intermediate stage of manufacture of Tubular Bags or Gauntlets or multitubes, the issue needs to be gone into which the lower authorities have not done so. He fairly submits that in the appellant s own case the Tribunal vide Final Order No. C/976/970, dated23-10-1997[1998 (97) E.L.T. 481 (T)], has held that these products were marketable, as the very same products were captively consumed by them. It is the submission before us that the decision of the Tribunal in their own case was rendered on 23-10-1997 and the decision of the coordinate bench in an identical set of facts involving the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the products is not disputed by both sides. It is seen that in the appellant s own case the Tribunal vide Final Order dated23-10-1997has held as under : This appeal from Revenue was argued by Shri Satnam Singh, Senior Departmental Representative. The respondents were represented by Shri. K.S. Ramabadran, learned Advocate. As narrated in the Order-in-Appeal, the appellants manufactured flat woven fabric out of polyester yarn under sub-heading 5504.29. The width of the fabric was 858 mm with salvages at intervals of 210 mm. This was to facilitate separating the entire width into 4 strips. The weaving was such that the fabrics were composed of two layers which fabric cut at required intervals produced fabric of tubular configuration. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 1988 (38) E.L.T. 310 (Tribunal). It was held that a fresh classification could be claimed for the first time before the Tribunal because it involved a point of law. The Supreme Court in their judgment in the case of Shri Rama Machinery Corporation (P) Ltd. v. Collector of Customs, reported in 1992 (57) E.L.T. 369 (S.C.) also held that the alternate classification was claimable at the Tribunal stage. The Supreme Court in their judgment in the case of Collector of Customs v. Enfield India Ltd. reported in 1991 (51) E.L.T. 172 (S.C.) had entertained the claim for a alternate classification made before them but had remanded the same to the Tribunal for considering the alternate classification. We, therefore, hold that the Revenue is j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under heading 5903.29 changed their stand before the Collector (Appeals) who proceeded to hold that the goods were not marketable. It is not denied that this very fabric was used captively consumed by them. The belief of the Collector is not borne out from the facts before him. No tests were conducted or no opinion were sought to determine the merits of the plea. In these circumstances, the findings of the Collector (Appeals) that the goods were not admissible has to be set aside. The Revenue in the appeal before us has suggested classification under heading 6301.00. This is residuary classification and the issue where this classification is attracted would have to be determined on examination of contended facts. The Tribunal cannot do th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration is not marketable and hence not excisable. Accordingly, we allow the appeal of the appellants herein without going into the alternative submissions made by the appellants ld. Consultant. In view of our decision on the marketability of the goods, entire order set aside. Consequently, penalty is also set aside. 6.2 It can be seen from ratio of the above two reproduced decisions, contrary and conflicting views are taken. It is seen that the decision of the Chloride Industries Ltd. (supra) was rendered by the coordinate Bench on13-12-1996which was not cited or produced before the coordinate Bench atNew Delhiwhen they decided the issue of the appellant vide Final Order dated23-10-1997. Since the issue involved is of a classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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