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PETITIONER: M/S. HINDUSTAN FERODO LIMITED

       Vs.

RESPONDENT: THE COLLECTOR OF CENTRAL EXC

DATE OF JUDGMENT:       04/12/1996

BENCH: S.P. BHARUCHA, S.C. SEN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      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 upheld the  findings of  the authorities below that the said rings fell  under Item  22F of  the  Central  Excise  Tariff which, so far as is relevant, reads thus:      "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 :-      xxx        xxx            xxx      (2) asbestos fibre and yarn:      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 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  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 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

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a single  customer had  either enquired or placed orders for the supply of articles such as the above. The Revenue 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 said rings, which were  shown to  the Tribunal,  arose after this stage. They were  in a  finished form. There was nothing elementary or crude  about 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  examined the  sample of  the rings very carefully. Asbestos fibre  is a  very strong  material. If  the ring is allowed to fall on the floor, nothing would happen to it. We found it  neither brittle  nor  fragile.  It  was  perfectly capable of  being handled and transported for marketing". In so far  as the aforementioned affidavits were concerned, the Tribunal observed  that the  deponents were  "not the  right persons to  give opinion  on the  type of  the products with which we  are concerned  in this case. The disputed products are industrial  goods. Only  industrialists engaged  in  the manufacture of  brake linings  and clutch  facings would  be interested in  them and not a dealer who sells commonly used asbestos products  in the  market". The  Tribunal went on to State, "Any  small scale  or medium  scale  manufacturer  of brake linings  and clutch  facings would  be  interested  in buying the  asbestos  rings  and  asbestos  fabrics  as  his starting materials,  if he  does not  have the  resources to start from  the stage one (the asbestos fibre stage)........ The fact  that the  appellants do  not sell  their  asbestos rings and  asbestos fabrics  is  immaterial.    .....    The material point  is that their asbestos rings and fabrics are marketable  products,  though  marketable  to  a  particular section of  the industry  only.   .........  The articles in dispute before  us are high value finished asbestos products and if the terms offered are right the smaller manufacturers of brake  linings and  clutch  facings  would  certainly  be interested in buying them"      It is  not in  dispute before us, as it cannot be, that the onus  of establishing  that the  said rings  fell within Item 22-F lay upon the Revenue. The Revenue led no evidence. The onus  was not  discharged. Assuming  therefore, that the Tribunal was  right  in  rejecting  the  evidence  that  was produced on  behalf of  the appellants,  the appeal should , nonetheless, have been allowed.      It is  not the  function of  the Tribunal to enter into the arena  and make  suppositions that are tantamount to the evidence that  a party  before it  has failed to lead. Other than supposition,  there  is  no  material  on  record  that suggests that  a small scale or medium scale manufacturer of brake linings  and clutch  facings "would  be interested  in buying" the  said rings  or that they are marketable at all. As to  the brittleness  of the  said rings,  it was  for the Revenue to  demonstrate that the appellants averment in this behalf was  incorrect and  not for  the Tribunal  to  assess their brittleness  for itself.  Articles in  question in  an appeal are  shown to  the Tribunal to enable the Tribunal to comprehend what  it is that it is dealing with. It is not an invitation to  the Tribunal  to give  its  opinion  thereon, brushing  aside   the  evidence  before  it.  The  technical knowledge of  members  of  the  Tribunal  makes  for  better appreciation of the record, but not its substitution.

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    The Revenue  sought to  make the  said rings dutiable a asbestos articles.  The affidavit  evidence of  a dealer  in asbestos  was  of  some  relevance.  So  was  the  affidavit evidence that  explained the  character and  use of the said rings. It  was wrong  of  the  Tribunal  to  find  that  the deponents of these affidavits were "not the right persons to give opinion  on the  type of  products" with  which it  was concerned.      Regrettably, the  Tribunal’s order  under appeal  shows that  it  was  not  fully  conscious  of  the  dispassionate judicial function it was expected to perform, and it must be quashed.      Learned counsel  for the  Revenue  submitted  that  the matter be  remanded to  the Tribunal so that the evidence on record may  be reappreciated. As we have stated, no evidence was led  on behalf  of the  Revenue. There is, therefore, no good reason to remand the matter.      The appeal  is allowed  and the  order under  appeal is quashed. No order as to costs.