Custom, Excise & Service Tax Tribunal
M/S. Gujarat Reclaim & Rubber Products ... vs Commissioner Of Central Excise, Puner on 24 March, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. APPEAL NO. E/2285/03 & E/2408 to 2411/03 (Arising out of Order-in-Appeal No. P-III/ 64 to 68/2003 dated 8/5/2003 passed by the Commissioner (Appeals) Central Excise, Pune-III For approval and signature: Honble Shri A.K. Srivastava, Member (Technical) Honble Shri Ashok Jindal, Member (Judicial) ============================================================
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 : Yes
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
============================================================= M/s. Gujarat Reclaim & Rubber Products Ltd :
Appellants VS Commissioner of Central Excise, Puner Respondents Appearance Shri Gajendra Jain Advocate for Appellants Shri Kishorilal Authorized Representative (SDR) CORAM:
Shri A.K. Srivastava, Member (Technical) Shri Ashok Jindal, Member (Judicial) Date of decision : 24/3/2009 ORDER NO.
Per : Shri A.K. Srivastava, Member (Technical) Heard both the sides and perused the records.
2. The appellants are engaged in the manufacture of reclaimed rubber falling under Chapter 40 of the Central Excise Tariff Act, 1985. The appellants are also involved in making of Crumbed Rubber of various items like Cut rubber and tyres. According to the appellants, the following process is involved in making of the crumbed rubber.
Waste rubber pieces of tyres, tubes etc., are purchased from the open market. The said waste rubber is subjected to cracking and grinding, without adding any oil, chemicals or fillers. Grinding is done with the aid of power. Ground (reduced to small particles or powder by crushing) is sieved through 30 or 40 mesh sieve. The said ground material is known as Crumb Rubber and can directly be used in the manufacture of rubber compounds.
3. It is the contention of the appellants that since the powder is manufactured only by crushing the rubber waste and no other chemicals are added, the process is not a process of manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944 and, therefore, Crumbed rubber in powder form is not classifiable under Chapter heading No. 40.04 of CETA, 1985. The case relates to the period from January, 1999 to December, 2001 and the demand of duty involved in Rs. 4,24,293/-.
4. We find that the issue is no longer res integra. The Tribunal in the appellants own case (C.CE and C, Surat-I Vs. Gujarat Reclaim and Rubber Products Ltd.) reported in 2006 (195) ELT 44 (Tri.-Mumbai) has held that the Crumbed rubber powder obtained by crushing small pieces of rubber cuttings having same properties and characteristics as input waste is not dutiable as mere changing of physical form does not amount to manufacture. While holding so, the Tribunal has relied upon the decision of the Tribunal in the appellants own case as reported in 1983 (14) ELT 2401 (Tribunal) as upheld by the Supreme Court [1990 (45) ELT A67 (SC)] and the Supreme Court decision in the case of Markfed Vanaspati and Allied Industries reported in 2003 (153) ELT 491 (SC).
5. Following the ratio of the Tribunals Judgement in the appellants own case as reported in 2006 (195) ELT 44 (Tri.-Mumbai), we hold that the impugned Orders passed by the Commissioner (Appeals) are not sustainable. The same are set aside. The appeals filed by the appellants are allowed.
(Pronounced in court) (Ashok Jindal) Member (Judicial) (A.K. Srivastava) Member (Technical) Sm 3