LexM/S HINDUSTAN FERODO LTD. versus THE COLLECTOR OF CENTRAL EXCISE, BOMBAY
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MIS HINDUSTAN FERODO LTD. A v. THE COLLECTOR OF CENTRAL EXCISE, BOMBAY DECEMBER 4, 1996 [S.P. BHARUCHA AND S.C. SEN, J.J.] B Central Excise Tariff: Item 22F-Scope oj Excise Duty-Rings punched from asbestos Boards and Asbestos fab1ics-Excise authorities holding that rings fell under Item 22-F-Tribunal C upholding the findings of authorities-Evidence led by assessee viz. affidavits of its senior Manager and of a man in the business of asbestos not accepted by Tribunal on the gmund that deponents were "not the right persons to give opinion on the type of products"-Appeal against the order of Tribunal-Held, it was wrong of the Tribunal to find that the deponents of affidavits were "not the right persons to give opinion on the type of products"-The onus of D establishing that the said rings fell within Item 22-F lay upon the revenue-17ie Revenue led no evidence-The onus was not discharged-Assuming that the Tribunal was right in rejecting the evidence produced on behalf of the appellants, the appeal should, nonetheless, have been allowed. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1425 of E 1987. From the Judgment and Order dated 28.4.87 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in A. No. E.D. (SB) (T) A. No. 817 of 1983-Bl F S. Ganesh, Rajiv Tyagi, U.A. Rana and Sudhanshu Tripathi for Gagrat & Co. for the Appellant. N.K. Bajpayee, R.S. Rana and P. Parmeswaran for the Respondent. The following Order of the Court was delivered: G The articles with which this appeal is concerned are rings punched from asbestos boards and two types of asbestos fabrics, namely special fabrics in a coil of continuous length and M.R. Grey in rolls. The Customs, Excise and Gold (Control) Appellate Tribunal in the order under appeal H 525 526 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R. A upheld the findings of the authorities below that the said rings fell under Item 22-F of the Central Excise Tariff which, so far as is relevant, reads thus: B "22-F. Mineral fibres and yarn and manufactures therefrom, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, the following, namely : xxxx xxxx xxxx (2) asbestos fibre and yarn: xxxx xxxx xxxx" The Tribunal rejected the contention of the appellants that the said rings were intermediate products in the manufacture of brake linings and clutch facings, that they were brittle and fragile, and that they were not JD marketable. In this behalf the appellants had produced before the Tribunal three affidavits, of which we may refer to tWo. The one affidavit was made by a Senior Manager, Technical, Sales, in the appellants' employment. He stated on the basis of his experience and knowledge, that M.R. Grey solid woven asbestos rolls had, generally, no industrial application except in the manufacture of woven type brake linings. Also, that special long fibre lE asbestos rings, being weak and porous, were generally not usable for commercial application other than in the manufacture of moulded clutch facings, after treatment and chemical processing. Before treatment and chemical processing, these rings broke on slight impact and could not withstand friction. Asbestos cloth was impregnated in resin and cured in :F moulds for making clutch facings. The other affidavit was of a man in the business of asbestos products in a large way since 1957. He stated that he had been shown BFB-9 cut rings and MR-Grey, that he had not dealt therewith, and that, to his knowledge, they were not available in the market. During his time in business not a single customer had either enquired or ~ placed orders for the supply of articles such as the above. The Revenue J led no evidence. The Tribunal referred in the order under appeal, to process drawings and came to the conclusion that the duty was sought to be levied at the fourth stage of manufacture in the appellants factory. The samples of the f said rings which were shown to the Tribunal, arose after this stage. They HINDUSTAN FER ODO LTD. v. COLLECTOR OF CENTRAL EXCISE 527 were in a finished form. There was nothing elementary or crude about A them. As asbestos products, they were fully manufactured. Nothing further was required to be done to make them fully manufactured asbestos products. The appellants' contention that the said rings were brittle and fragile articles and hence not marketable "was simply not true. We e
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