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TMI Blog2003 (4) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the Appellants manufacture Textile softener which is a Lubricating Preparation classifiable under Heading No. 34.03 of the Schedule to the Central Excise Tariff Act; that the sample of the impugned product was drawn by the Central Excise Officers and was sent for chemical test for the purpose of ascertaining whether the impugned product is a Lubricating Preparation or not; that the Chemical Examiner, Baroda has given his opinion as "The sample is in the form of off white aqueous pasty mass. It is composed of Hydrocarbon Oil (Mineral Oil), fatty matter, organic surface active agent and other additives. Such compositions is stated to find use to lubricate/soften textile fibres during spinning." The learned Advocate, further, submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d allowed the appeal filed by the Appellants. The learned Advocate mentioned that the said decision is squarely applicable to the present matter as the facts are similar. Reliance has also been placed on the decision of the Tribunal in the case of CCE, Madurai v. Chennai Inorganic Limited, 2002 (150) E.L.T. 552 (T). 3. Countering the arguments, Shri Vikas Kumar, learned SDR, submitted that no where Chemical Examiner has given his finding that the goods in question are Lubricating preparations; that the Chemical Examiner has merely opined that the products find use to lubricate/soften textile fibres during spinning; that the report given by the Chemical Examiner is vague as the words "lubricate" and "soften" are not synonymous words; that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not brought on record any material to show that the textile softener manufactured by them is used as a lubricating preparation; that as the Appellants are claiming the benefit of exemption notification the onus is cast on them to show that their product is covered by the exemption notification; that it is settled law that the exemption being in the nature of exception is to be construed strictly and in case of doubt or ambiguity, benefit of it must go to the State. He relied upon the decision of the Supreme Court in the case of Novopan India Limited v. CCE & Cus., Hyderabad, 1994 (73) E.L.T. 769 (S.C.) wherein it has been held that "A person invoking an exception or an exemption provision to relieve him of the tax liability must establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but excluding preparations containing, as basic constituents, 70% or more by weight of petroleum oils or of oils obtained from bituminous minerals." 5. A perusal of the Tariff Heading clearly reveals that the Heading covers two products, namely, (1) lubricating preparations, and (2) preparations of a kind used for the oil or grease treatment of textile materials, leather, furskins or other materials. The product in question is textile softener which is used for softening of textile fibres. No material has been brought on record by the Appellants to show that the product in question is a lubricating preparations. The Appellants have placed reliance on the Chemical Examiner's report which merely states that the product find use to lubricate/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 12/94-C.E. as amended. The learned SDR has also rightly pointed out that in Reliance Rasayan (Pvt.) Limited case, the matter was remanded to the Commissioner (Appeals) for re-examining the position of the product and its use and its eligibility to the notification for passing the order in accordance with law. In Chennai Inorganics Limited case, there was clear finding of the Commissioner (Appeals) that the product involved therein was lubricating preparations used in leather industry in the light of the technical literature and process of manufacture produced by the Respondents. No such technical literature has been brought on record by the Appellants herein. We, therefore, hold that the benefit of Notification No. 12/94-C.E. as amended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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