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TMI Blog2002 (5) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e and does not include 'further working'. This is evident from the interpretation of Note 9 of Chapter 40, that further working would envisage an activity other than those mentioned therein. Hence, on the basis of the aforesaid discussion, the impugned goods would be classified under sub-heading 4008.21 and not under sub-heading 4016.99 as claimed by the Department. Appeal allowed. - Civil Appeal No. 4844-4846 of 1999 - - - Dated:- 7-5-2002 - S. Rajendra Babu and Ruma Pal, JJ. Sudhir Malhotra and Sanjeev Malhotra, Advocates, for the appellant. Mukul Rohatgi, Additional Solicitor-General of India (M. Gauri Shanker Murthy, K.C. Kaushik and B. Krishna Prasad, Advocates, with him) for the respondents. [Judgment per : Rajendra Bab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assification List No. 35/89-90 was pending, on account of the change of rate of duty qua ADV tyres, [14% ADV instead of specific rate of duty of Rs. 42 per tyre], the appellants submitted another Classification List No. 173/89-90 on 6-11-1989. The Department chose to approve the original Classification List No. 35/89-90 without any modifications. The original list was neither reviewed nor revoked. 5.Subsequently, the Superintendent, Central Excise, Range II, Jalandhar, on 2-2-90 vide show cause notice issued under C. No. CE-20/Demand/R.II/98/139, demanded duty of Rs. 5,57,300.99 for the period between July 1989 and December 1989 by classifying the goods under sub-heading 4016.99 of the Act. 6.On 30-3-1990, another show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 with respect to Classification List No. 173/89-90 are contended to be factually incorrect. 10.The appellants filed on 25-5-1990 an interim reply to the show cause notice dated 5-4-1990 and submitted that it has been reversing the credit of duty taken against inputs used in the manufacture of subject goods in view of Rule 57C of the Central Excise Rules, 1944. It further stated that if the Department holds that the subject goods are dutiable then there is no bar of rule. In this view of the matter they were entitled to avail the credit of duty against the manufacture of the impugned goods. The appellants had reversed a sum of BED Rs. 11,61,951.29, SEB Rs. 8,097.54 in the RG 23A Part II Register, and requested that this credit may be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural/synthetic rubber is mixed with certain chemicals including black carbon with the help of a mixing mill. 2. The material so obtained is fed into extruder hopper. Extruder dye is of the required size and shape. 3. Extruder material is taken to water tank for cooling and over conveyor belt. 4. The extruded material is placed in dye and is pressed with the help of hydraulic press and what emerges out is vulcanized grooved material called procured tread. 15.Heading 40.08 reads as ''Plates, Blocks, Sheets, Strips, Rods, and profile shapes of vulcanized rubber other than hard rubber'' and sub-heading 4008.21 reads as "Plates, Sheets, and Strips for resoling or repairing or retreading rubber tyres". On the other hand, Heading 40.16 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular geometric shape. Plates, sheets and strips may be surface worked (printed, embossed, grooved, channeled, ribbed, etc.) or simply cut to rectangular (including square) shape, whether or not having the character of articles, but may not be otherwise cut to shape or further worked." 17.Therefore, the question that arises for consideration is whether the appellant manufacturer's process of placing the plates, sheets and strips in the dye and subjecting the same to pressing in the hydraulic press is in the nature of 'further working'. 18.The appellants contended that the amendment was effective only from 31-5-1990 and, therefore, the same could not be extended to the classification list filed by them prior to that date. The amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n No. 47/76, as amended, was not applicable to the appellants. The two members of a Bench of the Tribunal having difference in their view the matter was referred to the Third Member. 21.The majority view of the Tribunal held that the basic character of the goods changed when they were subjected to the process of dye and grooving by hydraulic press. In their opinion, "even after the emergence of plates, sheets or strips after extrusion, the material had to undergo the hydraulic press stage to become the plates, sheets and strips meant for resoling, repairing or retreading under the sub-heading No. 4008.21." This process fell within the meaning of "further worked" and, therefore, the impugned products could not be classified under sub-headi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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