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TMI Blog2009 (2) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... der is accordingly set aside and appeal allowed decision in favour of the assessee. - E/204/2007 - A/396/2009-WZB/AHD - Dated:- 4-2-2009 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. Shri V. Sridharan, Advocate, for the Appellant. Shri D.S. Negi, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. The appellant is engaged inter alia in the manufacture of Vulcanised Non-Cellular Rubber sheets classifiable under Chapter 40 of the Schedule to Central Excise Tariff Act, 1985. The said sheet is being cleared by them in the domestic market for manufacture of foot-wear as also is being exported. The direct clearance to shoe manufacturers is to the tune of 30%, as claimed by the appellant and the balance 70% of the domestic sales are routed through traders, who in turn sell the same to small manufacturers of soles or heels for footwear. 2. The dispute in the present appeal is as to whether the said product being manufactured by the appellant is classifiable under heading 4008.21 or the same would fall under heading 4008.29. For better appreciation, we reproduce the said two entries as under. 4008.21 : Plates, blocks, sheets and st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cases, the classification cannot be differed in those cases where no direct evidence is coming forth to establish the actual use of the sheet in the footwear. It is their contention that prior to 1997, the non-cellular rubber sheets were unconditionally exempted by way of Notification No. 8/1996-C.E., dt. 23-7-1996 (Sl. No. 40) and there was no end use condition built in the exemption Notification. In the budget of 1997-98, the exemption was incorporated in the tariff entry itself. Even in the tariff, there is no end use condition and the appellant cannot be expected to find out the actual end use of the product, in each and every case. It is sufficient if the product is established to be of a kind required to be used in footwear industries and is actually shown to have been used in footwear industry, in majority of the cases, the products has to be held as falling under heading 4008.21. It stands further contended that wherever such end use certificates are required, detailed and specific guidelines are statutorily prescribed. In the absence of any such requirement, the adjudicating authority could not have introduced such end use requisition on his own. 6. It is also cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition put by the appellant, the goods might have been used somewhere else, thus earning their exit from sub-heading 4008.21. 8. The expression used in heading 4008.21 is used in the manufacture of . Whether such expression has to relate to the actual use (emphasis provided) or the same has to be interpreted so as to mean that to be ordinarily used or intended use. If the interpretation advanced by the Revenue is accepted, the same would mean that the manufacturer of the rubber sheets is required to establish in each and every clearance that the same were actually used in the manufacture of soles or heels etc. for footwear. Further such sales may not be always to the actual users but may be through the traders, who further sell the goods to footwear manufacturers, in which case it is not only impractical but would be impossible for any manufacturer to verify the use of such goods at the customer s end and to establish (subsequent to clearance of the goods) that the same were actually used in the manufacture of soles or heels for footwear. Such an interpretation, on the face of which would defeat the entry. The same product, if actually used for soles and heels would earn its cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes. We note that there is no such requirement in the entry to produce any end used certificate for the purpose of claiming the coverage. In the absence of any such requirement in the tariff itself, such a condition cannot be introduced by the Revenue. Wherever legislature intended to grant benefit based upon the actual end use, proper guidelines stand prescribed. This establishes that insistence on end use certificate is not warranted when there is no such specific statutory requirement. As such, even in the absence of any evidence showing the actual end use of the goods, the same would be classifiable under heading 4008.21, as long as they are of the kind to be used for soles and heels. 10. The appellants have also relied upon various technical literature and other evidences to establish that the rubber sheets being manufactured by them are of a kind used in the manufacture of heels, soles for footwear. However, we find that such reference or reliance may not be required inasmuch as the Revenue have themselves granted benefit to the appellant, wherever the sheets have been sold directly to the footwear manufacturers or wherever it is established that the traders have sold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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