ORDER
K. Prakash Anand, Member (T)
1. This is a matter in which action was taken by the Government to review order-in-appeal passed by the Appellate Collector of Central Excise, Madras in appeal filed by M/s. M.M. Rubber Company Ltd. under Section 36(2) of the Central Excises and Salt Act, 1944. On the setting up of this Tribunal, the matter has been transferred here and is being treated as an appeal of the department before us against the orders of Appellate Collector of Central Excise, Madras.
2. The facts of the case are that the respondent company manufacture what the department calls ‘latex foam sponge’ cut into shape for use in the manufacture of cushion seats for motor vehicles. The company claimed classification of the goods under Item 68 of the Central Excise Tariff (hereafter Central Excise Tariff). The Assistant Collector rejected this claim and held that the goods were classifiable under Item 16A Central Excise Tariff. The Appellate Collector, when the matter came up to him, decided that dual seat cushions for motor vehicles were classifiable under Item 34A of the First Schedule of the Central Excises and Salt Act, 1944 for the period prior to the admendment of the said Tariff Entry with effect from 10-5-1980 and under Item 68 Central Excise Tariff after the said date. It Is against this order that the department is now in appeal before us.
3. We have heard Shri L.C. Chakraborthy, JDR for the department and Shri R.K. Lukose, advocate for the respondents.
4. At the out-set, Shri Lukose seeks permission to file some documents by way of additional evidence. These were not included in the paper-book earlier filed. The documents are: a certificate filed by Enfield India Limited, a manufacturer of motor cycles that the subject product are complete seats; a certificate issued by M/s. Y.A. Mamaji & Son, a dealer in articles of latex foam sponge stating that they do not trade in seats of motor vehicle; a letter by M/s. Allibhai Premji Tyrewalla, a spare parts dealer of motor vehicles confirming that the seat cushions are sold as spare parts of motor cycles; photo-copy of the purchase order received from M/s. Enfield India Limited describing the Impugned goods as component parts of motor cycle and similar letters from M/s. Bajaj Auto Limited, Ideal Jawa Limited and Sundaram Clayton Ltd. There are letters addressed by different organisations on the same subject.
5. We have considered this request and find that the order of the Assistant Collector is dated 24-11 -1980, the order of the Appellate Collector is dated 31 -3-1961. A Show Cause Notice proposing review of the order of the Appellate Collector was issued on 15-3-1982. To this, reply was given by the appellant company on 7-5-1982. On the other hand, as rightly pointed out by the learned JDR various communications from M/s. Y.A. Mamaji & Son, M/s. Allibhai Premji Tyrewalla, Association of Indian Automobile Manufacturers, All India Rubber Industires Association, M/s. Enfield India Limited, Escorts Limited, Kinetic Engineering Ltd. are all of subsequent dates from 1983 to 1985. Shri Chakraborthy, JDR has strongly opposed the admission of these documents on the ground that they are not contemporaneous. This argument is valid.
6. So far as the documents at S. Nos. 7 to 11 of the paper book filed by the appellants are concerned, it has not been shown to us that these were part of the records before the lower authority. ' 7. In the circumstnaces, the request for permission to file these documents as additional evidence is rejected. 8. Coming now to the merits of the appeal, the learned JDR at the very out-set points out that the issue is fully covered in favour of Revenue in the order of this Tribunal in the case of Collector of Central Excise, Madras v. Apex Rubber (P) Ltd. 1987 (32) ELT 593.
9. The learned advocate, on the other hand, relies on the order of this Tribunal In the case of Collector of Central Excise, Bangalore v. Poly Flex (P) Ltd. -1985 (Vol. 15) ECC t-257. He also adds that his arguments find support from the ratio of the decision of the Hon’ble Supreme Court In the case of Atul Glass Factory v. Union of India and Ors. -186(25) ELT 473.
10. As the arguments proceeded, we found that this Tribunal has already decided the issue of classification of latex foam sponge cushion seats (naked with out covers) In a case pertaining to the same appellants. This decision was in favour of Revenue. 1964 (15) ELT 198.
The orders passed also dealt with the arguments of the appellant that they ware supported by the ratio of the decision of the Supreme Court in the case of Atul Glass Factory and their submission in this regard was rejected.
11. The decision in the above cited case of M.M. Rubber Co. was confirmed in the orders of this Tribunal in the Apex Rubber (P) Ltd. case (supra).
12. The appellants cannot derive any strength or support from the decision in the case of Collector of Central Excise, Bangalore v. Poly Flex (P) Ltd. (supra) where the product was manufactured by a single shot injection moulding process. It had been noted that this was quite different from the process of manufacture of polyurethane foam in the form of slabs and blocks. The Item in that case, it was held by the Tribunal, was a seat or saddle which could be straightaway fitted to scooter/motorcycle, which is not the case here.
13. We concur in the view taken by this Bench in the case of Collector of Central Excise, Madras v. Apex Rubber (P) Ltd. (supra) and Collector of Central Excise, Madras v. M.M. Rubber Co. Ltd. (supra).
Accordingly, this appeal Is allowed.