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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 ..... i) 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 configuration. These woven fabric are impregnated. Then metal rods are inserted into impregnated woven fabrics and fed into heating chambers for heat treatment. After this process the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same product in the case of Chloride Industries Ltd. v. CCE - 1997 (93) E.L.T. 773, it was held that the products are not marketable and benefit was given to the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. The fabrics were later dipped into PH Resin and used as separators inside electric batteries. The assessee had claimed classification under heading 5507.00 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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 justified in raising a fresh classification before us at this stage also. At this stage we have considered the plea of Shri Satnam Singh, the learned, senior Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abric 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 this. This examination will have to be done by the original authorities. On the point of classification of the processed fabrics alone, we remand the case back for det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 classification of identical products, the decision rendered by the Tribunal in the case of the appellant on23-10-1997, to our mind seems to be per-incuriam. Since the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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