ORDER
C.N.B. Nair, Member (T)
1. The issue raised in these appeals of the Revenue is the correct classification of “Precured Rubber Tyre Patches”. Under the impugned order the Commissioner of Central Excise (Appeals), Pune held the correct classification to be under sub-heading 4016.99. In the present appeals, the Revenue has contended that this classification in erroneous and the correct classification would be under sub-heading 4008.21.
2. We have perused the records and considered the submissions made by both sides. The contention of the Revenue is that the very issue remains decided by another Division Bench of this Tribunal in the case of Unipatch Rubber v. C.C.E. – 2001 (130) ELT 348. Learned DR pointed out that after taking into consideration the earlier decision of the CEGAT in the case of Madras Rubber Factory, Board’s Circular and Note 9 to Chapter 40, the Tribunal held that correct classification would be under sub-heading 4008.21 and not under residuary sub-heading 4016.99. Learned DR has urged that the Tribunal may allow the present appeals as the classification canvassed in these appeals is in conformity with the classification order passed by this Tribunal.
3. Learned Counsel for the respondents does not contest that the goods (Criss Cross Patch of unvulcanised Rubber) which was considered in the aforesaid decision and “Precured Rubber Tyre Patches” under consideration in the present appeals are the same. He, however, contends that the decision of the Tribunal in the case of Unipatch Rubber is erroneous. According to him, only plate, sheet or strip can fall under sub-heading No. 4008.21 and not profile shape, Note 9 to Chapter 40 considered. He has, therefore, canvassed that the earlier decision of the Tribunal in the case of M.R.F., though rendered in regard to classification under old tariff 16A, holds good with regard to the classification under Chapter 40 also. It has also been pointed out that the decision of this Tribunal in the case of Unipatch Rubber has not attained finality as an appeal against that order has been admitted by the Apex Court (Civil Appeal No. 1332/2001).
4. A perusal of the decision of this Tribunal in the case of Unipatch Rubber makes it clear that decision was rendered after due consideration of the rival contentons on merits of classification made by both sides. That an appeal has been admitted against that decision does not affect its binding nature. Accordingly, the Appeals of the Revenue are allowed after setting aside the impugned order of classification. “Precured Rubber Tyres Patches” shall be classified under 4008.21 and assessment of duty made accordingly.
(Pronounced today 28/05/03)