Per P.G. Chacko : M/s. Ralson (India) Ltd. (appellants in Appeal No. 419/2002.) M/s. Metro Tyres Ltd. (in A No. 420/2002) and M/s Govind Rubber Ltd. (in A No.421/2002) are engaged in the manufacture of tyres and tubes of rubber for Bicycles and Cycle Rickshaws. They manufacture 'compounded rubber' of heading No.40.05 of the Central Excise Tariff Schedule and use the same captively in the manufacture of such tyres and tubes. Prior to 1.3.94 "compounded rubber" was wholly exempt from duty under Notification No.152/87-CE dated 25.5.87. This notification was rescinded by Notification No. 64/94-CE dated 1.3.94 whereby the exemption stood withdrawn. However, the exemption was restored to compounded rubber by Notification No. 74/94-CE dated 28.3.94. In the result, for the brief period from 1.3.94 to 27.3.94, there was no exemption from duty in respect of compounded rubber. This is the period relevant to the dispute in these appeals.

2. As the appellants had not paid duty of excise on compounded rubber cleared for captive consumption for the above period (1.3.94 to 27.3.94), the Department issued show-cause notice to them. The notices were contested on numerous grounds. The Commissioner of Central Excise, in adjudication of the show cause notices, passed order-in-original Nos. 27-29/97 dated 27.10.97 confirming demands of duty of Rs.46,97,428/-, Rs.46,77,469/- and Rs.54,21,524/- against M/s Ralson (India) Ltd, M/s Metro Tyres Ltd. and M/s Govind Rubber Ltd. respectively. The order of adjudication was challenged before this Tribunal by these appellants and the Tribunal, by order dated 26.11.99, remanded the matter for de-novo adjudication vide 2000 (36) RLT 64. The adjudicating authority, in the de-novo proceedings, again confirmed the demands of duty as above as per order Nos. 86-88/CE/2001 dated 29.11.2001. The present appeals are against this order of the Commissioner. The so-called cross objections filed by the Department are only in the nature of arguments against the grounds of these appeals as well as in support of the impugned order. These are not cross objections contemplated under sub-section (4) of Section 35B of the Central Excise Act.

3. In the remand order passed by this Tribunal, there was a direction for draw of samples of compounded rubber from the three factories for analysis as also for giving the assessees a reasonable opportunity of being heard. Pursuant to the remand order, the assessees filed identical written submissions with the Commissioner, wherein they raised various contentions and cited judicial decisions in support thereof. They also relied on a certificate dated 1.12.97 of Dr. S.N. Chakravarthy, Chairman, Indian Rubber Institute as also on certain circulars of the Central Board of Excise Customs. Samples of compounded rubber were drawn from the factories of the appellants and sent for testing to the Central Revenue Control Laboratory (CRCL), which, after testing of the samples, issued identical reports in respect of the three assessees' samples. This report read as under:-

"The sample is in the form of cut piece of black coloured sheet; composed of compounded rubber. The compounded rubber consists of natural rubber, carbon black, inorganic fillers and other additives.

The sample on vulcanization satisfies the conditions laid down for rubber as given in Chapter 40, note 4(a) of CET. Thus showing no signs of deterioration."

After seeing the above report, the assessees wanted to cross-examine the Joint Director of CRCL as well as the three Superintendents of Central Excise who had drawn the samples. Though all the persons sought to be cross-examined were produced for the purpose, the assessees did not choose to cross-examine them. They wanted redraw and re-testing of samples. The plea of redraw of samples was turned down, but retesting of the samples already drawn was permitted. Accordingly, CRCL conducted retests and issued reports on 6.7.2001. Again, the retest reports read identically except in respect