Page 303 - ELT_1_1st April 2020_Vol 372_Part

2020 ] COMMR. OF C. EX. & SERVICE TAX, JAMMU & KASHMIR v. GRAVITA METALS 189

latter had been exempted from paying any central excise duty on the
ground that their product was classifiable under Tariff Heading 24.04, the
appellants should get the same benefit.
6. At the hearing today we sought an explanation from the learned Coun-
sel appearing on behalf of the Revenue Authorities as to why different
stands had been taken in the cases of M/s. Chandulal K. Patel & Company
and the appellant. Since the matter had not been squarely dealt with on
facts at any stage by any of the authorities below, it was not possible for
learned Counsel to give us the reasons for drawing this distinction between
the two manufacturers and differently classify what were alleged to be ma-
terially the same product.
7. In the circumstances we deem it appropriate to set aside the order of
the Tribunal and remand the matter back to the Tribunal for considering
whether the product and process followed by M/s. Chandulal K. Patel &
Co. is the same as that of the appellants. For the said purpose, the Tribunal
will send a sample of the appellants’ product for the chemical analysis if
not already done. The Tribunal will thereafter consider the question of clas-
sification of the appellants’ product having regard to the classification of
‘Karta Chhap Zarda’ the chemical analysis report and any other material
that may be placed before it by the respective parties.
8. The appeals are disposed of on the aforesaid terms. There will be no
order as to costs.”
We note that the said decision is followed in the case of Unipatch Rubber
Limited (supra), the same is also reproduced :-
“The point involved in these appeals is whether the criss-cross patches of
vulcanized rubber manufactured by the appellant is classifiable under sub-
heading 4008.21 of the Central Excise Tariff Act, 1985, as claimed by the
Revenue or under sub-heading 4016.99 thereof, as claimed by the assessee
appellant.
2. The Tribunal, by the impugned order, has confirmed the order of the
Commissioner (Appeals) holding that the criss-cross patches of vulcanized
rubber manufactured by the appellant are classifiable under sub-heading
4008.21.
3. One of the contentions raised by the appellant before the Tribunal was
that the classification for identical rubber patches was being done by the
Department under sub-heading 4016.99. In support of this submission, the
appellant relied upon Order-in-Original No. V/40/3/5/87-VC, dated 19th
December 1991 passed by the Assistant Collector of Central Excise, Dindig-
ul and Order-in-Original No. V/40/30/91/94-C.E., dated 29th November
1996 passed by the Assistant Commissioner of Central Excise, Coimbatore,
II Division, Coimbatore. Apparently, in the impugned order, the tribunal
has not recorded any finding on the said contention.
4. This Court in an identical situation arising in the case of Damodar J.
Malpani v. Collector of Central Excise reported in 2002 (146) E.L.T. 483 (S.C.)
held that the least the Tribunal could have done in the interest of ‘uniformi-
ty’ was to call upon the Revenue Authorities to explain why they were
making a distinction between the appellant’s product and that of another
manufacturer allegedly manufacturing the same product. This court, in the-
se circumstances, remanded the case to the tribunal for considering wheth-
er the product and process followed by the other manufacturer in the said
case was the same as that of the appellants in the said case and thereafter
consider the question of classification of the product manufactured by the
EXCISE LAW TIMES  1st April 2020  351