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TMI Blog2015 (5) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... to Chapter 39 of Schedule to Central Excise Tariff Act, 1985 clearly shows that sheets are covered under CETH 3920-3921. The note clearly refers only to sheets and not sheetings. A clear distinction has been made between sheetings and sheets by the Tribunal in the case of Nanya Exports & Imports and reliance of the Commissioner on this decision is appropriate. No contrary decision has been produced before us of any superior forum. Once the classification under 3926 90 is upheld, exemption from duty is available in terms of N/N. 8/96-C.E., dated 23-7-1996. Appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. Finetech Enterprises. On this basis, proceedings were initiated. The proceedings initiated in respect of first show cause notice dated 11-3-1997 involving an amount of more than ₹ 32,00,000/- for the period from 1-3-1996 to 31-12-1996 reached up to the Tribunal and matter was remanded by the Tribunal to the Commissioner to consider the claim of the appellant why the pre-pregs manufactured by them is classifiable under CETH 3926.90. The Tribunal remanded the matter for examination of the claim by the appellant that the pre-pregs manufactured by them and used captively is in continuous roll length of 50 metres and not in sheets. This contention was not made before the lower authorities, the remand order was made. The present imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the said decision are relevant and are reproduced below : "8. On a careful consideration, and on perusal of the entire order, we are of the considered opinion that the Apex Court's ruling rendered in the case of CC v. K. Mohan & Co. Exports is not distinguishable and the findings rendered by Apex Court in the context of description of the terms in the notification is pari materia to the description available in the present notification under consideration. In all other judgments cited by the Counsel, the ruling of the Hon'ble Apex Court in K. Mohan & Co. Exports case has not been taken into consideration. In the Apex Court judgment referred to, the terms "sheets" and "sheetings" have been dealt with and the raw material was 'plas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable in item 16A(2)(ii) of the CET and not in terms of description in exemption notification, as has been specifically done by the Apex Court. Further, the Tribunal in these judgments including the other two judgments cited above, had not taken into consideration the effect of ruling of the Apex Court judgment rendered in CC v. K. Mohan & Co. Exports (supra). We are not in a position to distinguish the Apex Court's judgment and therefore, respectfully following the same, we have to hold that the item in question is only "sheetings" and not 'sheets cut to form size' for the purpose of manufacture of Insoles and Midsoles. The findings arrived at by the Commissioner to deny the benefit of Notification is required to be upheld. We do not fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of paper based decorative laminated sheets and cotton fabric based laminated decorative boards. What was under consideration was not pre-pregs or products in the form of rolls. We find that since the product under consideration was cotton fabric based laminated decorative board and there is no observation that what was under consideration was pre-pregs or cotton fabric based laminated sheet in roll form, the decision of the Hon'ble Supreme Court is not applicable to facts of this case. The appellant also relied upon the decision in the case of Collector of Customs v. K. Mohan & Co. Exports [1989 (43) E.L.T. 811 (S.C.)] to submit that film rolls of indefinite length can be more appropriately described as sheeting rather than sheets. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm only. Further we also find that Note 10 to Chapter 39 of Schedule to Central Excise Tariff Act, 1985 clearly shows that sheets are covered under CETH 3920-3921. The note clearly refers only to sheets and not sheetings. A clear distinction has been made between sheetings and sheets by the Tribunal in the case of Nanya Exports & Imports and reliance of the Commissioner on this decision is appropriate. No contrary decision has been produced before us of any superior forum. Once the classification under 3926 90 is upheld, exemption from duty is available in terms of Notification No. 8/96-C.E., dated 23-7-1996 and there is no contrary submission on this issue. 8. The appellants also have raised the marketability issue but in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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