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TMI Blog2019 (9) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... n given by him under Central Excise Tariff Heading No. 4008 29 10 is in contradiction to the findings of the test report since the test report very categorically says that it is of non-cellular rubber in the form of sheets. These sheets as per the claim of respondent-manufacturer are primarily used in manufacture of soles, heals or soles and heals combined for footwear, the correct classification of the product as discussed above falls under CETH 4008 21 10, which have rightly been classified by the respondent-manufacturer. Appeal dismissed - decided against Revenue. - E/54014/2018 with E/50741/2019 - Final Order No. A/51832/2019-EX(DB), - Dated:- 18-9-2019 - Shri Anil Choudhary, Member (J) and C.L. Mahar, Member (T) Shri Naveen Mullick, Advocate, for the Assessee. Shri H.C. Saini, AR, for the Department. ORDER The brief facts of the matter are that the respondent assessee namely M/s. Uttam Polyrubs Pvt. Ltd. are engaged in manufacture of resin rubber sheet for soles and heels classifying the same under Central Excise Act, 1944 under Heading No. 4008 21 10 and clearing the same under nil rate of Central Excise duty. The department has been of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants desires to cross-examine required for arriving at just and fair conclusion in the matter. With these directions, we remand all the matters back to Original Authority. The appeals are allowed by way of remand. 5. By following our earlier order, we set aside the impugned order and remand the matter to the original authority with the similar direction (supra). 6. In the result, appeals filed by the appellant are allowed by way of remand. 2. The Learned Commissioner has undertaken the de novo adjudication as per the above directions of this Tribunal. The Learned Commissioner vide its impugned Order-in-Original No. ALW-CE-EXCUS-000-COM-018-18-19, dated 14-8-2018 have dropped all the demands raised in the previous three show cause notices dated 27-11-2010, 1-11-2011 and 3-8-2012. The relevant findings given in the Order-in-Original are as follows : 6.7 That the demand was raised through SCN dated 27-11-2010 for the period November, 2005 to September, 2010, most of the demand was barred by limitation. The extended period cannot be invoked as they had been filing their ER-1 Returns clearing their goods on Central Excise Invoices for the last so many years and furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4008 19 90 --- Other . Kg. 12.5% - Of non-cellular rubber : 4008 21 - Plates, sheets and strip : 4008 21 10 - Used in the manufacture of soles, heels or soles and heels combined, for footwear Kg. Nil 4008 21 20 - For resoling or repairing or retreading rubber tyres . Kg. 12.5% 4008 21 90 --- Other . Kg. 12% 4008 29 -- Other : 4008 29 10 -- Rubber sheets and resin rubber sheets for soles and heels Kg. 12% 4008 29 20 -- Blocks use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 5.5 The adjudicating authority has passed the OIO by simply relying on the basis of certificates produced by the assessee from the various suppliers that the said product has been used in footwear industry. However, the description under sub-head 4008 21 10 - used in manufacture of soles, heels or soles and heels combined for footwear - and head 4008 29 10 - Rubber Sheets and resin sheets for soles and heels both contains the words Soles and heels . Adjudicating authority has failed to give his findings on this aspect that why the product of assessee cannot be classified under 4008 29 10 as claimed by the department. 4. The respondent-manufacturer has filed a cross objection wherein they have stated that the grounds of appeal in Department s appeal are nothing but reiteration of allegations raised in impugned three show cause notices. 5. It has further been stressed that in spite of clear directions of this Tribunal in their remand order dated 16-11-2017, the concerned officer who has tested the sample has not been produced for cross examination to the respondent manufacturer. It has further been added that on similar issue an Order-in-Original No. AGA-EXCUS-000-COM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 the goods to the persons who have used it in the manufacture of soles and heels. This establishes that the appellants are engaged in the manufacture of rubber sheets of a kind to be used in the manufacture of soles and heels. 11. The statements recorded by the Department proved that the ultimate purchasers have used the sheet for manufacture of soles for footwear. The sales tax registration certificate on record also proves that the customers were either the dealers or manufacturers of footwear. The affidavit of 16 customers/letters or purchase orders also show that the sheets have been used in the manufacture of soles for footwear. As against the above voluminous evidence produced by the assessee, there is no evidence on record to establish that the sheets have been used for some other purposes. In any case, the appellant having established in majority of the cases that the rubber sheets being manufactured by them was being used for the manufacture of so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Polymer type by FIR Blend of NR SBR rubber B Glass transition temperature by DCS ( C) C Thermo gravity Analysis by T6A (i) Low boiling material (% by wt) 1.67 (ii) Polymer content (% by wt) 35.92 (iii) Ash content (% by wt) 62.4 D Physical Properties before ageing (i) Tensile strength (Kg/cm 2 ) 52 (ii) Elongation at break (%) 100 (iii) Hardness (Shore A ) 89 E Water absorption test (i) % wt change/RT/24 hrs/Distilled water +0.30 (ii) % Volume change/RT/24 hrs/Distilled water -0.04 F Specific Gravity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification of the product as discussed above falls under CETH 4008 21 10, which have rightly been classified by the respondent-manufacturer. The Co-ordinate Bench of this Tribunal in the case of Pololight Industries Ltd. (supra) had already held a principle that if the primary use of the product is for the manufacture of soles, heels or soles and heels combined and the product is of non-cellular rubber, same need to be classified under CETH 4008 21. In view of the this, we have no doubt in our mind that the correct classification of the product is under sub-heading 4008 21 10. 11. We also find that the Commissioner, Customs Central Excise Service Tax, Agra has also classified non-cellular rubber sheet meant for footwear industries for manufacture of soles, heels or soles and heels combined under Chapter sub-heading 4008 21 10 of Central Excise Tariff Act, 1985 vide his Order-in-Original No. AGA-EXCUS-000-Com-0001-17-18, dated 6-6-2017 and admittedly this order-in-original has already been accepted by the Department. In view of our discussion, we do not find any legal infirmity in the conclusion raised in Order-in-Original dated 14-8-2018 and therefore, we uphold the same ..... 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