CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, NEW DELHI
P.C. Jain, A.C.C. Unni, JJ.
Commissioner of Central Excise, Chandigarh -Appellant
Versus
Asian Rubber & Plastics Industries -Respondent
Final Order Nos. 434-441/99-D Appeal No. E/1633/93-D, 434 of 1999, 441 of 1999, 1633 of 1993
Decided On : 18-05-1999
Per P.C. Jain :
Short question involved in these matters is whether friction cloth arising at the intermediate stage in the course of manufacture of TR belting, V Belts and Conveyor Belts is liable to duty or not. It is not disputed that the friction cloth is utilised captively for manufacture of the aforesaid types of belts.
1.1 Assistant Collector concerned has given a finding that the said friction cloth is not marketable on the basis of thorough market enquiry made by him as referred to in the order-in-original. The Revenue, however, challenged the said order of the Assistant Collector on the ground that under the new TH 59.05 describing the goods as "Rubberised textile fabric" specifically covers friction cloth inasmuch as it is a rubberised fabric as indicated from the process of manufacture and therefore, the question of marketability does not arise when the Tariff itself mentions the same as excisable product. This plea of the Revenue against the order-in-original was accepted by the lower appellate authority holding as follows in the bunch of appeals of the assessees:-
"I have considered the grounds of appeal of the Deptt. I find that the Deptt. is mainly placing reliance on the statutory entry of the goods in question i.e. friction cloth under sub-heading 5905.10. The Deptt. is mainly stressing that this entry in the C.E. Tariff makes friction cloth statutorily excisable and has submitted that non-marketability of friction cloth does not come in the way of excisability of the goods and respondents' arguments and A.C.'s findings in this regard are not at all sustainable. I agree with the grounds given by the Deptt. and I also agree with the Deptt. that the earlier decision of Punjab
On the other hand, in the appeal of the Revenue, the lower appellate authority has held as follows:-
"This view point was again upheld by the Double Bench of the Hon'ble High Court in the case of Union of India Vs. Punjab Rubber
After giving the matter due careful consideration and in view of the above reported judgments of the Hon'ble High Court of Punjab
2. We have heard the learned advocates for different parties as also the learned JDR, Shri V.M. Udhoji for the Revenue.
3. We have carefully considered the pleas advanced from both sides. We have thus two sets of findings, one finding of Collector (Appeals) holding that the product is not marketable and reliance on High Court of Punjab
3.1 On the other hand, in the bunch of six appeals of the assessees the Commissioner (Appeals) holds that marketability is not a necessary criterion whe
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