Custom, Excise & Service Tax Tribunal
Commr.Of Central Excise, Haldia vs M/S. Osnar Chemicals Pvt. Ltd on 9 April, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No.-509/06
(Arising out of the Review Order No. 19/Review/Commr./2006 Dated 7.08.2006 passed by the Commissioner of Central Excise, Haldia)
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
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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 ?
Commr.of Central Excise, Haldia
APPELLANT(S)
VERSUS
M/s. Osnar Chemicals Pvt. Ltd.
RESPONDENT(S)
APPEARANCE
Sri S. Misra, Addl.Commr. (A.R.)
FOR APPELLANTS
Sri Willingdon Christian, Advocate
FOR THE RESPONDENTS
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DATE OF HEARING & DECISION : 9.4.2012
ORDER NO.
Per SRI S.K. GAULE
Heard both sides.
2. Revenue filed this appeal against the order in original No. 157 & 158/Commissioner/CE/Haldia/Adjn./2005 dated 09.08.2005 whereby Ld. Commissioner has set aside the lower adjudicating authoritys order. The Department initiated proceedings against the respondents alleging that they are manufacturing Polymer Modified Bitumen (PMB). Accordingly, a demand cum show cause notice was issued against them. Ld. Commr. while adjudicating the case, dropped the proceedings initiated against the respondent. Aggrieved by the same, Revenue is in appeal. The contention of the Revenue is that the Ld. Commissioner has dropped the proceedings against the respondent on the grounds that the goods were not marketable. The contention is that the goods are marketable on the ground that their goods are removed and sold at the factory gate. The contention of the respondent is that the issue is fully covered by the Tribunals decision in their own case-2009 (240) ELT 115 (T) wherein the product is held to be not excisable. The above decision was confirmed by Honble Supreme Court in appellants own case-2012 (276) ELT 162 (SC) and held that:
23.Having considered the matter on the touchstone of the aforesaid legal position, we are of the view that the process of mixing polymers and additives with bitumen does not amount to manufacture. Both the lower authorities have found as a fact that the said process merely resulted in the improvement of quality of bitumen. Bitumen remained bitumen. There was no change in the characteristics or identity of bitumen and only its grade or quality was improved. The said process did not result in transformation of bitumen into a new product having a different identity, characteristic and use. The end use also remained the same, namely for mixing of aggregates for constructing the roads.
24. We also find substance in the contention urged on behalf of the assessee that the answer to the issue at hand stands concluded by the dismissal of the Civil Appeals filed by the revenue against the decision of the Tribunal in the case of Collector of Central Excise, Vadodara Vs. Tikitar Industries, 2000 (118) ELT 468 (Tri.). In that case the dispute was whether the process relating to improvement of the quality of bitumen by raising its softening point and penetration amounted to manufacture of a new and different commodity. The process involved in improving of a new and different commodity. The process involved in improving the quality of bitumen was oxidation, which converted straight grade bitumen into air blown bitumen. In revenues appeal the Tribunal had inter alia held as under :
19. The duty paid bitumen received by the Assessee is boiled so that foreign substances like sand and stone settle down; thereafter the air is blown into the material for improving the quality of the bitumen by raising the softening point and penetration; this makes the bitumen suitable for intended application. It is seen from the process undertaken by the Assessee that only the quality of the product which has already suffered duty is improved...
3. In these circumstances we do not find any reason to interfere with the order of Ld. Commissioner which we uphold and dismiss the appeal filed by the Revenue which is bereft of any merit. Appeal dismissed.
(Dictated and pronounced in the open court) Sd/-11/4/12 Sd/- 11/4/12 (DR. D.M. MISRA) (S.K. GAULE) JUDICIAL MEMBER TECHNICAL MEMBER k.b./-
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