Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Bolpur vs M/S Vikash Ceramic Pvt. Ltd on 23 August, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.669/06
Arising out of O/A No.44/Bol/2006 dated 31.07.2006 passed by Commr. of Central Excise (Appeals), Kolkata.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Bolpur
APPELLANT(S)
VERSUS
M/s Vikash Ceramic Pvt. Ltd.
RESPONDENT (S)
APPEARANCE Shri A. K. Biswas, Supdt. (A.R.) for the Department None for the Respondent (s) CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & PRONOUNCEMENT : 23. 08. 2012 ORDER NO..
Per Shri S. K. Gaule :
Heard the ld. A.R. for the Department. None present for the respondent. The Revenue filed this appeal against the Order-in-Appeal No. 44/Bol/2006 dated 31.07.2006, whereby the ld. Commissioner (Appeals) has allowed the appeal of the respondent.
2. Briefly stated the facts of the case are that the respondents are engaged in the manufacture of fire bricks grog and declared it as non-excisable. The Department initiated proceedings against the respondent on the ground that fire bricks grog is classifiable under Chapter 6901.00 as refractory bricks. Accordingly, the show-cause notice was issued against the respondent. The ld. Adjudicating Authority confirmed the proposal in the show-cause notice. Aggrieved by this, the respondent filed an appeal before the ld. Commissioner (Appeals), who found that the fire bricks grog are not excisable and accordingly, set aside the impugned order of the ld. Adjudicating Authority and allowed the appeal filed by the respondent. Hence, the Revenue is in appeal.
3. The contention of the Revenue is that refractory grogs are obtained after cutting refractory bricks specific sizes. The contention is that Chapter Note does not require that the ceramic products must necessarily be in the shape of bricks, it rather covenanted that the initial shaping must precede firing, and the grogs were already fired in the shape of bricks, for which reason the rejected, broken, cracked bricks did not require any further firing after getting reduced to specified sizes, known as grogs as they contained all the properties of refractory ceramic products. The contention is that Chapter Note 2 of Chapter 69 does not debar refractory grogs from being classified under SH No.6901.00 of CETA, 1985.
4. We have carefully considered the submissions and perused the records. The ld. Commissioner (Appeals) has found in his order as under :
I find that in the impugned Order-in-Original the grog has been equated with refractory bricks stating that the same has been obtained after further processing like cutting to specific sizes. But in the SCN allegation was that the grog was refractory bricks broken into pieces on certain specified sizes through grinding of refractory bricks. I find force in the appellants contentions that in the process of grinding and breaking, refractory bricks cannot retain its shaping and hence it cannot satisfy the requirement of Chapter Note 2 of Ch.69 and thus excluded from the purview of Ch.69 by virtue of the restriction clause of Ch.Note 2 of Ch.69. I find that the impugned order-in-original has traveled beyond the scope of the SCN on this score.
In the case of Commissioner of Central Excise, Indore Vs, Vikram Super Cement, Honble CESTAT, Northern Bench, New Delhi held Waste and scrap of fire bricks to be non-excisable/dutiable following the ratio of law laid in Birla Corporation Vs. Central Excise, Raipur [2003 (162) ELT 499 (Tri)] and the Apex Court judgement in CCE, Pune Vs. Finolex Cables [2002 (146) ELT A 100 (SC)].
In the case of Visavandatta Cement Vs. CCE, Belgaum, Honble CESTAT held that Waste and Scrap of refractory material not classifiable under Ch.69 of CETA85 being not specified thereunder. Since it is not specified under which S.H. of Ch.69 the item fall, there is no jurisdiction to levy duty on the item. The item as such is not excisable. On perusal of show-cause notice, we find that the Department initiated the proceedings to classify fire bricks grog as the refractory bricks broken into pieces to certain specified sizes under Chapter 6901.00 of CETA, 1985, for which the respondents were claiming it as not excisable. Further, from the records of the case, we find that the goods are sold in gunny bags in loose condition. In these circumstances, we do not find any reason to interfere with the clear and cogent findings in the order of the ld. Commissioner (Appeals), which is upheld and the appeal filed by the Revenue, which is devoid of merit, is dismissed.
Dictated and pronounced in the open Court.
Sd/ Sd/
( DR. D. M. MISRA ) ( S.K.GAULE )
JUDICIAL MEMBER TECHNICAL MEMBER
mm
4
Ex..Appeal No.669/06