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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 ..... est and equal amount of penalty was confirmed under Section 11AC of the Central Excise Act, 1944. Some personal penalties on the Directors were also imposed. The respondent manufacturer filed an appeal against the order in original dated 7-8-2015 before this Tribunal. The Tribunal in its first round of litigation decided the matter vide Final Order dated 16-11-2017. This Tribunal in its order dated 16-11-2017 had decided to send the matter back for de novo adjudication giving following instructions :- "4. After hearing both the parties and on perusal of records, it appears that the identical issue has come up before this Tribunal in the case of Capstan Rubber India and Ors. v. CCE & ST, Agra (Final Order Nos. 70892-70895/2016, dated 15-9-2012 where it was observed that - "7. Heard the rival contentions. We find that the reliance is placed on various test reports. The Learned Counsel for the applicants has emphasised that the test report dated 8-5-2013 gives a report that the both samples are Non-cellular as well as resin based rubber sheet. Non-Cellular Rubber sheet falls under Chapter 4008 21 whereas resin based rubber sheet falls under Chapter 4008 29 10. We underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings against the appellant. The department is before us against the above referred Order-in-Original on the ground that the Learned Adjudicating Authority has not understood the process of classification of subject goods correctly and thereby have reached to wrong classification of the product and thus dropping the proceedings against the respondent manufacturer was legally wrong. The relevant extract of the appeal is reproduced herein- below : '5.3 The adjudicating authority has concluded that "Non Cellular Rubber Sheet" will merit classification under 4008 21 10 and not under 4008 29 10 as Tariff Entry 4008 21 00 is more specific that 4008 29 00 which is general in nature. The above conclusion appears to be wrong as there is no specific heading such as 4008 21 00 or 4008 29 00. Description of Tariff Heading 4008, 4008 21 and 4008 29 is as under : Tariff Item Description of Goods Unit Rate of Duty 4008 Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber -- Of cellular rubber : 4008 11 - Plates, sheets and strip; 4008 11 10 --- Of micro-cellular rubber.......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rubber' and having headings 4008 21 to 4008 29 90 under this category. Further, the second category of single "-", i.e. "- non-cellular" rubber' is further sub-divided into two categories at "-" level, i.e. 4008 21 "- Plates, Sheets and Strips" and 4008 29 "- other". It is under 4008 21 the sub-heading 4008 21 10 exist at "-" level. It is under different 4008 29 that sub-heading 4008 29 10 exist at "-" level. Therefore, it is erroneous on the part of adjudicating authority to conclude that once the product is non-cellular rubber, it will fall under 4008 21 10 and not under 4008 29 10. As pointed out, non-cellular rubber items can fall under 4008 21 as well as 4008 29. Therefore, whole premise of adjudicating authority is not based on correct understanding of scheme of classification. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main issue of classification, we make it clear that the other grounds are not being considered by us." 7. The above decision of the co-ordinate Bench of this Tribunal has already laid down a principle that if the principal use of non-cellular rubber plates, sheets and strips are in manufacture of soles, heels, or soles and heals combined for footwear, same need to be classified under specific heading which have been provided under Chapter sub-heading 4008 21. 8. Before proceeding further, let us have a look at the test report relied by the Department. The test report given by Indian Rubber Manufacturer Research Association (IRMRA) is reproduced hereinbelow : Chemical and Physical properties of product. Sr. No. Test Observed value 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/cm2) 52 (ii) Elongation at break (%) 100 (iii) Hardness (Shore A°) 89 E Water absorption test (i) % ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 and the Department's appeal in this case being withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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