Custom, Excise & Service Tax Tribunal
M/S. Aravali Marbles vs C.C.E & S.T. Jaipur-I on 10 September, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. II Appeal No. E/3888/2006-EX(DB) [Arising out of Order-in-Appeal No. 211(GRM)CE/JPR-I/2006 dated 31.08.2006 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur]. For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) 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 Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? M/s. Aravali Marbles .Appellants Vs. C.C.E & S.T. Jaipur-I .Respondent
Appearance:
Shri Bipin Garg, Advocate for the Appellant Shri Govind Dixit, DR for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) Date of Hearing: 10.09.2015 FINAL ORDER NO. 52869/2015-EX(DB) Per B. Ravichandran:
The appellants were engaged in the production of Marble Slabs / tiles from rough irregular marble slabs. The dispute arose regarding the taxability of the appellant under Central Excise Act 1944 on the issue as to whether the processes undertaken by the appellant amount to manufacture or not. Proceedings were initiated resulting in order in original dated 03.05.2002. The Tribunal vide order dated 31.03.2004 set aside this order in original and remanded matter for fresh adjudication. On denovo adjudication vide order dated 21.08.2005 the Original authority held that the demand against the appellant is not sustainable. On appeal by the Revenue the Ld. Commissioner (A) vide order dated 28.08.2006 set aside the original order and held that the process undertaken by the appellants amounts to manufacture resulting in excise duty liability. Aggrieved by this order, the appellant is before us.
2. In the appeal it was pleaded that the Departments reliance on the Tribunals decision in the case of M/s. Nitco Tiles Pvt. Ltd. Vs. CCE Mumbai-2004 (165) ELT 50 (Tri-Mum) is not correct. They are not involved in the process as undertaken by M/s. Nitco Tiles Pvt. Ltd. (Supra) using various machines and technologies. The appellants contended that they were cutting smaller marble blocks into irregular marble slabs by using 14 inch circular saw. Such irregular marble slabs were subjected to edge cutting with the help of edge cutting machine for obtaining regular marble slabs or tiles. They further contented that the elaborate process undertaken by M/s. Nitco Tiles Pvt. Ltd. (Supra) for manufacturing of slitted tiles is entirely different from the process undertaken by them which is simple edge cutting of irregular marble slabs to produce regular marble slabs or tiles. The tiles produced by M/s. Nitco Tiles Pvt. Ltd. (Supra) were slitted tiles which were generally used for decorating the walls in bathrooms and kitchens while those manufactured by the appellants are used for floor covering because of their thickness. Hence, they pleaded that the ratio of Tribunals decision in the case of M/s. Nitco Tiles Pvt. Ltd. (Supra) is not applicable to them. They have further relied on the Tribunals decision in the case of CCE Vs. Fine Marbles and Minerals Pvt. Ltd. 1985 (22) ELT 128. In the said case the process of obtaining tiles from marble blocks was the same as in the case of appellants. The said judgment was approved by the Honble Supreme Court also reported in 1986 (9) ECR 544 (SC).
3. During the arguments, the Ld. Counsel for the appellant relied on the following decisions in appellants support:
a) Oriental Trimex Ltd. Vs. CCE Noida-2010 (249) ELT 259 (Tri-Del)
b) Anmol Granites Vs. UOI-2006 (199) ELT 769 (Raj).
c) Royal Granites Vs. CCE Jaipur-2007 (213) ELT 393 (Tri-Del)
d) Kotah Stones Pvt. Ltd. Vs. CCE Baroda-1995 (80) ELT 145
4. He further argued that introduction of note 6 to Chapter 25 Tariff to have a concept of deemed manufacture in respect of products of tariff heading 2515 & 2516 clearly will indicate that prior to 01.03.2006 such process undertaken by the appellant will not amount to manufacture.
5. The Ld. AR on the other hand, reiterated the findings of the Ld. Commissioner (A) and relied on the decision of this Tribunal in the case of M/s. Nitco Tiles Pvt. Ltd. (Supra).
6. We have heard both the sides and examined the appeal records.
7. The period of dispute in the present appeal is 2001-2002. The original authority dropped the proceedings against the appellant relying the decision of the Honble Supreme Court in the case of Aman Marbles Industries Pvt. Ltd. Vs. CCE-2003 (157) ELT 393 (SC). The only ground on which the said order was challenged was that the decision of the Tribunal in the case of M/s. Nitco Tiles Pvt. Ltd. (Supra) will be relevant and not the decision of the Honble Supreme Court in the case of Aman Marbles Industries Pvt. Ltd. (Supra). We find that in the impugned order the Ld. Commissioner (A) simply recorded his findings to the effect that I find that process of manufacturing of tiles does not make any difference for making the goods distinct and marketable. Therefore I find that the process undertaken by the respondent for obtaining marble blocks falls within the meaning of manufacture under section 2(f) of Central Excise Act 1944. We find that such conclusion should have been arrived at after analyzing appellants plea that the processes and end products of M/s. Nitco Tiles Pvt. Ltd. (Supra) are not comparable to appellants products. Apparently, Ld. Commissioner (A) treated all products which are generally called as marble tiles as of one category. This is prima facie erroneous. We find this Tribunal had occasion to examine a similar issue in the case of Oriental Trimex Ltd. (Supra). The Tribunal held that production of cut to size marble slabs and polished marble tiles from marble blocks and marble slabs do not amount to manufacture. We observe that note 6 inserted in Chapter 25 of the Tariff w.e.f. 01.03.2006 makes it clear prior to that date any person carrying out such process will not be subjected to excise. It was held that the processes specified in the said chapter note cannot be held clarificatory in nature. The Honble Rajasthan High Court in the case of Anmol Granites (Supra) held that the Honble Apex Courts decision in the case of Aman Marbles Industries Pvt. Ltd. (Supra) implies to the fact that cutting and polishing of the granites into slabs and tiles do not amount to activity of manufacture and such decision is binding on all Tribunals in India.
8. Considering the above discussion we find that the impugned order is not sustainable and accordingly set aside the same. The appeal is allowed with consequential relief, if any.
(Operative part of the order pronounced in the open court)
(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)
Bhanu
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E/3888/2006-EX(DB)