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TMI Blog2007 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier date of hearing and they are also not present today despite notice. In fact, some of notices issued to them have come back returned. There are also no adjournment requests. It appears that these appellants are not interested in pursuing their appeals. As such, these appeals are dismissed for non-prosecution. 2. Heard both sides in respect of appeal No. E/2328/02 filed by M/s. Priti Poly Coated and appeal No. E/1380/03 filed by the Commissioner of Central Excise, Valsad. Both sides agree that the impugned goods in question are laminated fabrics produced by laminating woven fabrics made of HDPE and that the same are classifiable under sub-heading 3926.90. The process of lamination has been carried out by the main appellant M/s. Priti P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation does not amount to manufacture and hence no duty is demandable from them. In support of their claim, they cite the decision of the Hon'ble Supreme Court in the case of Metlex (I) Pvt. Ltd. v. CCE, New Delhi - 2004 (165) E.L.T.129 (S.C.). The learned Consultant draws our attention to the finding of the Hon'ble Supreme Court in the said case which has held that laminating/metalising of duty paid film does not amount to manufacture since the product is a film to start with and remains a film after lamination or metallisation and no new/distinct poduct comes into existence. It has also been held that proving the fact of manufacture lies on the Revenue once the assessee contends in reply to the show cause notice that there is no manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rics (labour job only) and it was for the department to make necessary enquiries and raise demand within time which has not been done. 8. The learned Consultant also challenges the manner of quantifying the demand by adopting uniform method of calculating the weight of the laminated fabrics. He stated that the demand should have been calculated applying the valuation norms. The learned Consultant also argues that the land, machinery etc. have been confiscated and redemption fine of Rs. 5 laths has been imposed, whereas, there was no such proposal in the show cause notice to confiscate the same. 9. The learned Consultant also states that the penalty imposed equal to 100% of the duty demand is unduly harsh and the same is not justified. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct. He further showed us from the statement of one of the manufacturers who was getting its HDPE woven fabrics laminated by the appellants back, that it was well known in the trade that such lamination amounts to manufacture and on receipt of such manufactured laminations they were paying Central Excise duty. Shri Bhagat further emphasized the fact that the appellants have received payments by cheque in all cases where the goods have been received under Rule 57F and returned back to the manufacturer, whereas, no duty has been paid in respect of goods received under kacha challan and in such cases, payments have been paid by cash only. Shri Bhagat supports the finding of the Adjudicating Commissioner in para 47 and states that the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 163 (Tri.)) holding that HDPE fabrics laminated with LDPE are classifiable under sub-heading 3926.90. The appellants themselves are clearing part of the goods under Rule 57F procedure to their suppliers, who have also paid duty on the same and sold the fabrics to Bags and Sacks manufacturers. Shri Anil Bhai Mathia, one of the partners in the appellants' company has also admitted that these goods were dutiable. Keeping these facts in view, we hold that the impugned goods are new marketable products manufactured by applying LDPE lamination on HDPE fabrics and they are dutiable under sub-heading 3926.90. 17. As regards the contention of the appellants that they are entitled to exemption under notification No. 8/96 and similar other not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration, which is filed, is only in respect of small scale exemption and the appellants have claimed exemption upto Rs. 30 laths but they have cleared goods in excess of Rs. 30 lakhs. However, after considering the sub missions made by both sides and taking into account the plea of the learned Consultant that the records have not been made available to them to prove the contention that the registration was surrendered after making full declaration, we are inclined to remand the matter for reconsideration on the question of limitation. 19. As regards that prayer of the learned Consultant for cum-duty price assessment, the same is acceptable and also the appeal by the department that the figures taken by the adjudicating Commissioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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