Custom, Excise & Service Tax Tribunal
Sail vs Coms,C.Ex - Bolpur on 22 October, 2019
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Excise Appeal Nos. 503 of 2005
(Arising out of Order-in-Original No. 10/Commr./BOL/05 dated 29 July 2005 passed
by Commissioner of Central Excise, Bolpur.)
M/s. SAIL
(Durgapur Steel Plant
Ispat Bhavan, Durgapur
Dist-Burdwan, Pin-713 203
West Bengal.)
....Appellant (s)
Vs.
Commissioner of Central Excise, Bolpur
(Sian, Bolpur, Birbhum,
West Bengal-731204.)
....Respondent (s)
WITH
(i) Excise Appeal No.393 of 2006 (SAIL); (ii) Excise Appeal No.556 of 2006 (Commissioner of Central Excise, Bolpur); (iii) Excise Appeal No.17 of 2008 (M/s. SAIL); (iv) Excise Appeal No.185 of 2009 (M/s. SAIL); (v) Excise Appeal No.74 of 2010 (M/s. SAIL); (vi) Excise Appeal No.198 of 2011 (M/s. SAIL);
(vii) Excise Appeal No.109 of 2012(M/s. SAIL);
(i) Arising out of Order-in-Original No. 04/Commr./Bol/06 dated 27.03.2006
(ii) Arising out of Order-in-Original No.10/Commr./Bol/05 dated 29.07.2005
iii) Arising out of Order-in-Original No. 52-53/Commr./Bol/07 dated 06.09.2007
iv) Arising out of Order-in-Original Nos. 26-27/Commr./Bol/08 dated 16.12.2008
v) Order-in-Original No. 103/Commr./Bol/09 05.11.2009
vi) Order-in-Original No. 75/Commr./Bol/2010 dated 23.12.2010.
vii) Order-in-Original No. 86/Commr./Bol/11 dated 13.12.2011 All passed by the Commissioner of Central Excise, Bolpur.) Appearance:
Dr. Samir Chakraborty, Sr. Advocate & Shri Abhijit Biswas, Advocate for the Appellant (s) Mr. D. K. Acharya, Spl. Counsel for the Respondent (s) CORAM: HON'BLE SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) HON'BLE MR. P. V. SUBBA RAO, MEMBER (TECHNICAL) 2 Excise Appeal Nos. 503 of 2005 DATE OF HEARING: 24.06.2019 DATE OF DECISION: 22.10.2019 FINAL ORDER NO. 76392-76399/2019 P.K.CHOUDHARY :
Seven (7) of the present appeals have been filed by the Steel Authority of India Limited, Durgapur Steel Plant (in short, "SAIL"), being aggrieved by the adjudication orders, all passed by the Commissioner of Central Excise, Bolpur. In respect of the adjudication order dated July 29, 2005, the Revenue has also filed an appeal, being aggrieved by the penalty of Rs. 1.00 crore imposed and seeking enhancement thereof. The details of the said eight (8) appeals are as under:-
Sl. Appeal Appella Impugned Duty (Rs.) Penalty Period SCN Date
No. No. nt order no. & (Rs.)
date (5) (7) (8)
(1) (2) (3) (6)
(4)
1. E/503/ SAIL O-I-O No. 23,52,93,0 1,00,00,00 January, Involving 23
05 10/Commr/B 89/- 0/- 11988 show cause
OL/05 to notices
dt:29.07.20 Februar
05 y,1989,
July
1991 to
May
1999
and
Decemb
er1999
to June
2004
(23
SCNs)
2. E/393/ SAIL O-I-O No. 2,16,41,79 2,16,41,79 July 05.08.2005
06 04/Commr/B 7/- 7/- 2004 to
OL/06 March
dt:27.03.20 2005
06
3. E/17/0 SAIL O-I-O No. 2,89,97,64 2,89,97,64 April (i).31.03.2006
8 52- 4/- 4/- 2005 to for Rs.
53/Commr/B July 1,20,58,609/-
OL/07 2005
dt:08.10.20 (ii)
07 09.11.2006 for
Rs.2,15,78,68
3
Excise Appeal Nos. 503 of 2005
0/-
4. E/185/ SAIL O-I-O No. 12,66,68,9 12,66,68,9 August (i) 28.08.2007
09 26- 29/- 29/- 2006 to for
27/Commr/B March Rs.5,99,66,16
OL/08 2008 6/-
dt:16.12.20
08 (ii)
02.07.2008
for
Rs.6,67,02,3
13/-
5. E/74/1 SAIL O-I-O No. 3,71,15,36 3,71,15,36 April 13.04.2009
0 103/Commr/ 0/- 0/- 2008 to
BOL/10 Novemb
dt:05.11.20 er 2008
09 and
Corrigendum
dt:15.01.20
10
6. E/198/ SAIL O-I-O No. 5,85,07,32 5,85,07,32 Decemb (i) 03.12.2009
11 75/Commr/B 8/- 8/- er2008 for
OL/10 to June Rs.3,50,91,65
dt:23.12.20 2010 2/-
10
(ii)
08.09.2010
for
Rs.2,84,15,6
76/-
7. E/109/ SAIL O-I-O No. 2,35,02,09 2,35,02,09 July 16.06,2011
12 86/Commr/B 3/- 3/- 2010 to
OL/11 March
dt:13.12.20 2011
11
8. E/556/ CCEx, O-I-O No. Nil To increase January
2006 Bolpur 10/Commr/B the penalty 1988 to
OL/05 of Rs. 1 June
dt:29.07.20 crore 2004
05 imposed
2. The issue involved in all the seven appeals filed by SAIL is the correct classification of the product Coal Tar Partially Distilled (in short, "CTPD") manufactured by SAIL in its Coke Oven and Coal Chemical Plant at its steelworks at Durgapur, West Bengal. According to SAIL, CTPD is correctly classifiable under Tariff Heading 27060090 of the Central Excise Tariff. However, by the impugned adjudication orders the Commissioner has held that the said goods are correctly 4 Excise Appeal Nos. 503 of 2005 classifiable under Tariff Heading 27081010 of the Central Excise Tariff and has confirmed accordingly differential duty demands as specified in the respective adjudication orders, along with interest and has also imposed penalties upon SAIL.
3. We have heard Dr.Samir Chakraborty, Learned Advocate for SAIL and Shri D.K.Achariya, Spl. Counsel for the Revenue and have perused the record.
4. On behalf of SAIL it was contended as follows:
(i) At its integrated steel plant at Durgapur SAIL manufactures steel from Coal and Iron Ore. Coke is charged in the Blast Furnace along with iron ore etc. for manufacturing iron in hot metal form. Coke is manufactured by carbonization of coal, i.e. through indirect heating of coal in series of ovens in the form of a battery known as coke ovens battery in the area of Coke Ovens and Coal Chemicals Plant of the integrated steel plant. In the process of coal carbonization, coke oven gas is generated through condensation resulting in production of crude coal tar, which is the mother of thousands of chemicals. The Coal Chemicals Plant separates the said chemicals by fractional distillation of the crude coal tar. When coal tar is completely distilled roughly at a temperature of more than 360°C, the residue becomes 'pitch', a solid waste in general. However, when the Coal Chemical Plant distils coal tar in its tar distillation plant upto a temperature of about 280° C, the residue obtained is "coal tar", but in partially distilled form, CTPD.
(ii) To get pitch from coal tar a completely different plant is required, which SAIL, DSP does not have. During 1987 SAIL, DSP started producing "Crude Tar Partially Distilled".
The price circular of SAIL, Marketing Department, contains 5 Excise Appeal Nos. 503 of 2005 CTPD as a product and is marketed as such. Classification list of CTPD effective from 01.09.1987 also classified the product as coal tar in partially distilled form falling under Tariff Heading 27060090 (as tar distilled from coal and partially distilled).
(iii) Prior to 01.09.1987, SAIL DSP in its Coal Chemical Plant used to manufacture Pitch Creosote Mixture ("PCM"), which is a distinctly separate product from CTPD. Though both are basically coal tar in partially distilled form, PCM having separate chemical composition as regards the extent of oil contents and distilled at separate temperature, has a distinctive separate commercial name and use from CTPD. The plant in which PCM used to be manufactured was totally abandoned by SAIL, which would appear from the photographs submitted at the time of hearing and taken on record.
(iv) In the year 1989 the Department got the sample of CTPD analysed by the Chemical Examiner, Central Excise, Customs House, 15/1, Strand Road, Kolkata. The sample was drawn from SAIL vide Test Memo No. 1/89 dated 21.04.89. The sample asked for "(7) the sample is to be tested for, whether it is tar and distilled from coal, from lignite or from peat, and other mineral tars, whether or not dehydrated or partially distilled, including re-constituted tars (Ch.2706.00)". The result of the test report also established that CTPD is not pitch in any form but has characteristics of coal tar from which light and middle oil fraction have been distilled off.
(v) The Tariff description 2706.00 specifically covers CTPD as a partially distilled tar, i.e., coal tar. The subject goods "CTPD" is known in the market as CTPD.
6 Excise Appeal Nos. 503 of 2005(vi) From the tariff provisions read with the relevant facts and materials on record, it is evident that CTPD is not and cannot be classified under Tariff Heading 27081010 of the Central Excise Tariff but is correctly classifiable under Tariff Heading 27060090 thereof and, hence, there was no non- payment or short payment of any duty payable by SAIL in respect of the said goods.
(vii) In passing the impugned orders the Commissioner avoided dealing with the specific contentions of SAIL and has resorted to incorrect facts to come to a conclusion that pending cases of classification dispute in respect of the said goods stood decided by the Apex Court in the case of Commissioner of C.Ex. Vs. Steel Authority of India Ltd., 2004 (164) ELT 387 (SC) and was no longer res integra. The decision of the Supreme Court decided the classification of Pitch Creosote Mixture and not Coal Tar Partially Distilled. The fact that the two products are different is evident from, inter alia, the observation of the Commissioner in one of the impugned order that PCM was a "similar product" to CTPD. Similar does not mean same. The decision of the Apex Court as regards classification of PCM in no manner whatsoever settled or could settle the classification of CTPD, a distinctly different product, known as such both by those who deal with the same and/or use the same, as well as in technical/chemical parlance.
(viii) The test reports of Department's Chemical Examiner and documents submitted before the adjudicating authority evidencing marketing of CTPD and Pitch as different products, conclusively establishing that they are two distinct and different products. Classification of goods has to be decided on the basis of principles in this regard 7 Excise Appeal Nos. 503 of 2005 settled by the Apex Court and alleged submission of a representative of the assessee cannot and does not alter this requirement of law.
(ix) In manufacturing CTPD, tar distilled from coal in Coke Oven Battery is allowed to be passed through a furnace having temperature of 300°C max. and subsequently through the distillation column. About 4% of the oiled vapour is only separated out from the distillation column which is fed to the fractional column and thus is obtained light oil and naphthalene oil. The remaining 96% of the coal tar is collected separately which is CTPD, meant for use as fuel. On the other hand manufacturing process of PCM which used to be manufactured earlier, the tar is passed through a furnace having temperature much higher at 330°C and above, resulting in vaporization of maximum amount of oil from tar. The said vaporized oil is fractioned/condensed and about 10% of the oil is collected separately as light oil and naphthalene oil and to some extent Creosote Oil. The remaining 20 to 22% of the oil are then mixed up in blenders with the residuals in the distillation column. The resultant product is termed as Pitch Creosote Mixture or PCM. The product PCM differs with the product CTPD in oil contents. CTPD has much more oil contents than in PCM.
(x) It is settled proposition of law that the burden of proof is on the taxing authorities to show that the goods in question is taxable in the manner claimed by them. Mere assertion in that regard is of no avail; there has to be material to enter appropriate finding in that regard based on materials and documents and it is for the taxing authority to lay evidence in that behalf.
(i) Hindustan Ferodo Ltd. Vs. Collector of Central Excise, 1997 (89) ELT 16 (SC), paras 3 to 6 8 Excise Appeal Nos. 503 of 2005
(ii) Parle Agro (P) Ltd. Vs, Commr. of Commercial Taxes, 2017 (352) ELT 113 (SC), paras 60 & 61
(iii) Sand Plast (India) Ltd. Vs. CCE, 2019 (24) GSTL 737 (T).
(xi) In the instant case, even the test report of Chemical Examiner of Department clearly evidences the correctness of SAIL's classification of CTPD under Tariff Sub-heading 27060090. Without assigning any reason whatsoever, the Commissioner has chosen to remain silent and ignore the said test report, which is binding upon the Department. In the light of the said test report also CTPD cannot be said to be PCM or classified as such.
(xii) The appellant does not manufacture pitch of any type nor had or is having any facility to manufacture pitch. It regularly purchases Pitch/Bitumen from various sources, like Indian Oil Corporation Ltd., for its use, which is evident from the materials on record of the instant proceedings.
(xiii) The Commissioner's view that CTPD and Pitch are both similar to each other, is also contradictory to the opinion of the Chief Examiner, Central Board of Excise and Customs, accepted by the Board vide CBE&C F No. 88/1/83-CX-3 dated 9-4-84; (T.A.No. 10/84). In the 18th North Zone Tariff-cum-General Conference held on 3rd and 4th February, 1982 at Indore, the Chief Examiner had explained that-
"Coal Tar pitch cannot be strictly called "Tar" but is only a residue product when the solvent has been completely extracted out of TAR. Pitch is the last residue in the process of destructive distillation of Coal in which process the distilled products like High and low Naphtha, High Creosote Oils are obtained. It was decided 9 Excise Appeal Nos. 503 of 2005 by the Conference that since 'Pitch' cannot be equated with "Tar", and nor can it be treated as a product identical with blends of Pitch with Creosote Oils, sub-tem (5) of the Item 11 of the CET cannot be applicable in the case of Coal Tar Pitch. The Conference felt that, since the product goes out of the purview of TI II, it is rightly classified under Item 68 of CET.
The matter was further examined in consultation with the Chief Chemist. The Chief Chemist observed that, for Coal Tar Pitch, there is an I.S.I. Specification (I.S. 216-1981) according to which Coal Tar Pitch is classified into four grades viz. Soft Pitch (Softening Point 45°C to 55°C), Soft Medium Pitch (Softening Point 58° to 68°C), Hard Medium Pitch (Softening Point 70° to 80°C) and Hard Pitch (Softening Point 82° to 92°C). The above Specification stipulates that the materials is obtained either (A) as residue of the direct distillation of Crude Tar by the high temperature carbonization of coal in coke events or retorts, or
(b) by fluxing back such pitch residue with high boiling coal tar distillates to give the products the desired softening point. If the distillation of Coal tar Residuals is continued to the desired point, then the residue is known as "Straight-run-Coal tar Pitch". On the other hand, if the distillation is carried to a point where the residue is harder and more infusible than desired and is thereupon fluxed to the desired consistency and fusing point, either with certain fractions of the distillates or a flux of different origin usually of little value commercially or with other Tars, then the Pitch is known as "Cutback Coal tar Pitch". High boiling coal tar distillates include creosote oil, as well as anthracene oil etc. 'Fluxing back' is nothing but blending of pitch with either creosote oil, coal tar distillation products and anthracene oil etc. the statutory wording of the Tariff Item 11(5) are such that Coal tar Pitch obtained by blending Pitch of higher consistency with either creosote oil or high boiling tar distillate would fall under its purview. Item 68 of CET is a residuary Item. Therefore, only 10 Excise Appeal Nos. 503 of 2005 such Coal tar Pitches, as are obtained without blending or fluxing with creosote oil or with other Coal tar distillation products (Straight-run Coal tar Pitch) during the course of their manufacture, would be covered by Item 68 of CET and those obtained by blending with creosote oil or other Coal tar distillates could be covered by T.I. 11(5) of CET..........."
From the Minutes of the said conference and the Board's Circular dated April 9, 1984 it would be seen that "Pitch" is the last residue in the process of destructive distillation of Coal whereas the CTPD arises at 260°C by partial distillation process of Coal Tar. During distillation process of tar, in the Tar distillation units, "Light Oil" and "Naphthalene Oil" fractions are taken out and rest oils goes with CTPD. This also clearly establishes that the said goods manufactured by SAIL, DSP and pitch are not similar products.
(xiv) The distinction between CTPD and Pitch stands further confirmed from the end user's certificates issued by SAIL's customers viz., Techmens' Chemicals Pvt. Ltd., Kolkata dated August 21, 2008 Nithya Sai Chemicals (P) Ltd., Visakhapatnam dated August 21, 2008, Mahabir Coke Industries (P) Ltd., Kolkata dated August 21, 2008 and Himadri Chemicals & Industries Limited dated September 2, 2008. All the said certificates unequivocally confirm that they manufactured Coal Tar Pitch as the final product from the CTPD purchased from SAIL. This relevant piece of evidence has also been ignored by the Commissioner.
(xv) As against the evidences submitted by SAIL before the Commissioner, neither the show cause notices nor the impugned orders contain an iota of evidence to establish that CTPD manufactured by SAIL is pitch, justifying classification of the same under Tariff sub-heading 27081010. In the absence of such evidence being disclosed it cannot be said that the decision of the Supreme Court in 11 Excise Appeal Nos. 503 of 2005 SAIL's case (supra) covers the instant cases. It is thus conclusively established that the Revenue authorities have failed to discharge the onus cast upon them, as per settled principles of law, for justifying classification of the said goods under Tariff Heading 27081010 and not 27060090 as contended by SAIL and, consequently, there can be no alteration of the tariff classification of the said goods as declared and claimed by SAIL, as held by the Apex court in Hindustan Ferodo Ltd.'s case (supra).
(xvi) It being thus established that classification of CTPD manufactured by SAIL is correctly classifiable on the Tariff Heading 27060090 and not Tariff Heading 27081010, it is also conclusively established that there has been no non- payment or short payment of any central excise duty payable by SAIL in the instant case. Consequently, the impugned orders of the Commissioner are erroneous, untenable and unsustainable. The payment for interest made in the impugned orders and the penalties imposed upon SAIL thereunder are also, therefore, contrary to law and untenable. As such, there is also no merit in the Revenue's appeal for enhancement of penalty in case of one adjudication order.
(xvii) Moreover in passing the impugned orders the Commissioner has proceeded on the self same facts and self same allegations and on the self same issue. Periodical show cause notices have been issued by the Commissioner covering respective periods all of which have resulted in the impugned adjudication orders. In such circumstances, as per law settled by the Apex Court, e.g., Nizam Sugar Factory Vs. CCE, 2006 (197) ELT 465 (SC), there can be no allegation of suppression of facts or wilful misstatement or contravention of the statutory provisions by SAIL with intent to evade payment of duty and, therefore, there can 12 Excise Appeal Nos. 503 of 2005 be no invocation of the extended period of limitation nor imposition of penalty under Section 11AC of the Act.
5. On behalf of the Revenue, besides reiterating the findings of the Commissioner in the impugned adjudication orders, reliance was placed on the Supreme Court's decision in CCE Vs. SAIL (supra). It is submitted that this decision completely settles the classification issue and that SAIL's contention that the impugned goods are different product than what was in the decision of the Apex Court is incorrect in view of their submission dated March 25, 1998 before the Commissioner. According to the Learned Special Counsel, mere change of name does not alter the goods.
6. We have carefully gone through the facts of the case and have considered the submissions made by the parties and the evidences produced by SAIL.
6.1 We find that as per Central Excise Tariff Act, 1985 Tariff Headings 2706 and 2708 are as follows Sub-heading Description of goods Rate of No. duty 270600 Tar Distilled From Coal, From Lignite Or From Peat And Other mineral Tars, Whether Or Not Dehydrated Or Partially Distilled, including Reconstituted Tars. 2700010 Coal Tar 6% 27060090 Other 6% Sub-heading Description of goods Rate of No. duty 2708 Pitch and pitch coke, obtained from coal tar or from other mineral tars. 270810 Pitch 27081010 Obtained by blending with 14% creosote oil or other coal tar distillates. 6.2 From the above descriptions it is transpires that Tar is distilled
from coal and from coal or from other minerals while pitch is obtained 13 Excise Appeal Nos. 503 of 2005 by blending with creosote oil or other coal tar distillates and both the goods are distinct and different in nature. Coal Tar Pitch is a residue product when the solvent has been completely extracted out of Tar whereas Pitch is the last residue in the process of destructive distillation of coal and in this process the distilled products like High and Low Naphtha, High Creosote Oils are obtained. Once a product is Pitch, it is no longer Tar.
6.3 The Hon'ble Apex Court in the case of the Commissioner of Central Excise, Bolpur Vs. SAIL (supra) has held that Pitch Creosote Mixture is a "pitch" and not a "partially distilled tar", hence it is classifiable under sub-heading 2708.11 of the Central Excise Tariff and not under Heading 27.06. "Tar" and "Pitch" are covered under separate tariff headings after 1.3.1986, "Tar" is classifiable under Heading 27.06 and Pitch under heading 27.08. "Pitch" is derived by distillation of "Tar" wherein the oils - Light oil, Naphthalene oil, Creosote oil and other residual oils are removed. Depending on the extent of oil removed "Pitch" may be "soft pitch" or "medium soft pitch" or "medium hard pitch" or "hard pitch". Once "pitch" is obtained, it is a completely different product from "Tar". Once a product is "Pitch", it is no longer "Tar". Pitch can, under no circumstances, fall under the Tariff Item 27.06. Partially distilled tar would be Tar which has not yet become "Pitch". Once the product becomes "Pitch", it is no longer "partially distilled tar", product and is therefore correctly classifiable under sub- heading 2708.11 of the Central Excise Tariff [paras 8, 9 & 10]. Pitch creosote prior to 1st March, 1986 classifiable under Tariff Item 11(5) of the erstwhile Central Excise Tariff as the said entry included both "Tar" and "Pitch" [paras 2 & 3].
6.4 We find that the lower adjudicating authority in his discussion and findings has stated that "The said Noticee is just dragging the scenario towards classification dispute of CTPD which has already been settled by the Hon'ble Apex Court. In this regard, it is pertinent to point out on record that the Noticee in its submission dated 25.03.1998 had confessed that PCM and CTPD are same products. The classification of a similar product, vis., PCM (Pitch Creosote Mixture) 14 Excise Appeal Nos. 503 of 2005 has been well settled by the Apex Court under six digit S.H. No. 2708.11 (which now corresponds to 8 digit Tariff Item No. 27081010) vide judgment reported in 2004 (164) ELT 387 (SC) in the Noticee's own case, setting at rest the dispute of classification of PCN (Pitch Creosote Mixture)". However, we find that SAIL in its grounds of appeal has insisted that what was stated by an officer in the preliminary reply of SAIL, DSP dated 25.03.1998 to a particular show cause notice, which was unrelated to the cases arising after 1987 involved herein was incorrect and contrary to records and that this was evident from the final consolidated reply dated 15.10.2004 to the 22 show cause notices, filed on behalf of SAIL, DSP (in Appeal No. E/503/05), wherein it was clarified that this final reply is to be considered as the only reply, ignoring any other reply or replies submitted earlier. There is no finding of the Commissioner as to why this contention has been found to be acceptable. No corroborative material has also been disclosed to show the incorrectness of the contention of SAIL, DSP that the same goods were not being manufactured during the material period and therefore the decision of the Supreme Court in SAIL's case (supra) continues to be applicable. 6.5 SAIL, DSP has also contended that the test report of Chemical Examiner of Department clearly evidences the correctness of its classification of CTPD under Tariff Sub-heading 27060090. But we find that the said test report dated 21.04.1989 is not conclusive. Moreover, the periods involved herein also covers subsequent periods from May 1999 to November 2015, whereas the said test report is of 21.04.1989.
6.6 We also find that SAIL, DSP has contended that they are not having pitch plant and have submitted photographs to prove this. It is also their contention that they never manufactured pitch of any type since 1987 nor had any facility to manufacture pitch. Further, it is evident from the end use certificates received from SAIL's customers
(i) M/s. Techmens Chemicals Pvt. Ltd., Kolkata dated 21.08.2008, (ii) M/s. Nithy Sai Chemicals (P) Ltd., Visakhapatnam dated 21.08.2008,
(iii) M/s. Mahabir Coke Industries (P) Ltd., Kolkata dated 21.08.2008 15 Excise Appeal Nos. 503 of 2005 and (iv) M/s. Himadri Chemicals & Industries Ltd. dated 02.09.2008 that they manufacture Coal Tar Pitch out of CTPD purchased from SAIL, DSP. Correctness of these contentions have not been verified or dealt with in any of the impugned orders. They are required to be verified. Findings thereon have important bearing on the correct classification of the product involved herein. 6.7 It is also found that no independent evidence has been disclosed in the adjudication orders to discharge the onus cast upon the Revenue to establish the correct classification of the impugned goods, as contended by them, and is covered by the Apex Court's decision in CCE Vs. SAIL (supra). In the case of Hindustan Ferodo Ltd. Vs. CCE (supra), the Hon'ble Supreme Court has observed and held as follows:
"3. It is not in dispute before us, as it cannot be, that the onus of establishing that the said rings fell within Item 22F 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.
4. 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."16 Excise Appeal Nos. 503 of 2005
The above decision has been followed by the Apex Court in Parle Agro (P) Ltd. Vs. Commr. of Commercial Taxes (supra). 6.8 In the light of the above we are of the view that the matters need to be remanded back to the Adjudicating Authority for fresh de novo decision upon due consideration of the evidences produced and to be further produced by SAIL, DSP and upon following the principles abovestated laid down by the Apex Court and observing the principles of natural justice and affording SAIL, DSP a personal hearing. If deemed necessary the Department should send fresh sample of the impugned goods for testing to the Chemical Examiner so that the exact chemical properties of the product can be found out to determine the correct chapter heading thereof.
6.9 All the appeals of both SAIL, DSP and the Revenue are therefore allowed by way of remand. It is made clear that all issues involved have been kept open.
(Pronounced in the open court on...22.10.2019...) Sd/-
(P.K.CHOUDHARY) MEMBER(JUDICIAL) Sd/-
(P.V.SUBBA RAO) MEMBER(TECHNICAL) T. K.