M/S. D Mello & Co vs Commissioner Of Central Excise, Mumbai

[Arising out of Order-in- Appeal No. BR/73/Th-II/2005 dtd. 31/5/2005 passed by the Commissioner of Central Excise (Appeals), Mumbai]

For approval and signature:

Honble Mr. P.K. Jain, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. D Mello & Co. : Appellants

VS

Commissioner of Central Excise, Mumbai : Respondent

Appearance

Shri. R.V. Shetty, Advocate for the Appellants Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 23/4/2015 Date of decision: 23/4/2015

ORDER NO.

Per : Ramesh Nair

This appeal is directed against the Order-in-Appeal No. BR/73/Th-II/2005 dated 31.5.05 passed by the Commissioner of Central Excise (Appeals) Mumbai-IV wherein the Ld. Commissioner upheld the demand however the reduced penalty was also maintained. The issue involved in this case is classification of Varnished Fiber Glass Sleevings manufactured by the Appellant. The appellant claimed the classification under T.I. No.22F(4) and the revenues contention is that it should be classified under T.I. No.22B of the erstwhile Central Excise Tariff.

2. Shri. R.V. Shetty, Ld. Counsel for the appellant submits that the product Varnished Fiber Glass Sleevings is falling under T.I. 22F(4) for the reason that their goods is predominantly manufactured out of glass fabric. In support of his claim he placed reliance on following various judgments.

(a)Vidyut Udyog Vs. Collector of Central excise[1992(60) ELT 300(Tribunal)]

(b)Excel Glass Fibre Industries Pvt. Ltd. Vs. Collector of C. Ex. [1991(51) E.L.T. 547 (Tribunal)

(c)Dynamo Dilectrics Vs. Union of India[1995(76) E.L.T. 41(Gud.)]

(d)Collector of Central Excise, Bombay Vs. Bharat Shoe-Lace Works, Bombay[1987(27) E.L.T. 545(Tribunal)].

(e) Standard Batteries Ltd. Vs. Appraiser, Appraising Deptt. & Others.[1981(8) ELT 257(Mad.)

He submits that in view of above judgments on the identical issue of classification of the same product. The issue does not remain a resintigra and therefore in view of the settled legal position their product is correctly classifiable under T.I 22F(4) and not under T.I. 22B as held by Revenue.

3. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings in the impugned order. He further submits that the original authority as well as the Commissioner (Appeals) has rightly held classification under T.I. 22B for the reason that Tariff entry 22B is for Textile fabrics impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials, not elsewhere specified. He submits that glass sleevings are actual fabric and the same is quoted by synthetic resin hence classifiable under T.I. 22B.

4. We have considered the submissions made by both the sides.

5. We agree with the submissions of the Ld. Counsel that on the same product, classification has been held by the various forum under Tariff Item 22F(4). However, main ingredient for classifying product under 22F(4) is product i.e. glass sleeves should contain predominantly glass fiber. From the adjudication order it is observed that the sole ground of the Revenue for classifying the product in question under 22B is a test report of the department of chemical examiner however from the discussion of chemical examiner report in the original order the ratio of synthetic resin and glass fabric has not been mentioned therefore in absence of the predominant factors of glass fabric in the product, the classification either under 22B or 22F(4) can not be concluded. We are of the view that if it is found that product is containing the predominant portion of glass fiber has compared to synthetic resin, it should be correctly classifiable under T.I 22F(4). As per the above position we are of the considered view that matter should be remanded back to the original adjudicating authority to bring on record the actual ratio/percentage of glass fiber and synthetic resin contained in the product and thereafter if the percentage of glass fiber is found to be more than synthetic resin the goods shall be classified under T.I. 22F(4) as held in the various judgments relied upon by the Ld. Counsel. We therefore remand the matter to the original adjudicating authority for passing a fresh order after examining content of the product. Needless to say that the appellant shall be given sufficient opportunity of personal hearing. The adjudicating authority is expected to complete denovo adjudication within a period of three months from the date of receipt of this order.

(Operative part pronounced in court)

P.K. Jain Member (Technical) Ramesh Nair Member (Judicial)

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