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5. The learned Senior Advocate for the appellant submitted that the goods manufactured by them were cement concrete blocks of modular design with its three dimensions conforming to IS 2185. These blocks were also used in walls of buildings. They were capable of being used in prefabricated buildings and hence could be considered as intermediates or components of prefabricated buildings. In this connection, the learned counsel referred to the National Building Code published by the Bureau of Indian Standards (BIS), which defined the term "unit" to include a block and also indicated that the units formed part of prefabricated building/structure. On this basis, it was argued that the benefit of Notification 64/88 was available to the cement concrete blocks in question for the entire period of dispute. Referring to the Tribunal's decision in Excon case (supra) as affirmed by the Supreme Court vide Excon Building Material Mfg. Co. Pvt. Ltd. vs. CCE, Bombay 2005 (186) ELT 263 (SC), the learned counsel submitted that the assessee in that case had never claimed that their blocks would be used in prefabricated buildings or that they were intermediates or components of prefabricated buildings. The assessee in that case had only claimed that the benefit of the Notification was available even to blocks, slabs and lintels falling under Heading 68.07 even though such blocks, slabs and lintels did not constitute an intermediate or component of prefabricated building. Therefore, according to the learned counsel, the judgment of the Hon'ble Supreme Court in Excon case is not an authority for the proposition that walls are not part of prefabricated buildings or that the blocks used in the construction of walls are not components of prefabricated buildings. The counsel submitted that this issue never arose before the Supreme Court in Excon case. It was argued that the language of the Notification was descriptive in nature and did not require any actual user condition to be satisfied. For the benefit of the Notification, it was enough to show that the cement concrete blocks in question were components/intermediates of prefabricated buildings or capable of being used in prefabricated buildings. There was no requirement to establish actual use of the blocks. On this basis, it was argued that the evidentiary materials produced by the appellant, which were not rebutted by the Revenue, were enough to show that the cement concrete blocks in question answered the description of goods given under Notification 64/88-CE and successor-Notifications. The learned counsel further argued that the appellant's case was squarely covered by the Tribunal's decision in Orion Precast Pvt. Ltd. vs. CCE, Bangalore-III 2006 (202) ELT 305 (Tri.-Bang.), wherein solid concrete blocks were held to be classifiable under SH 6807.20 as blocks of a kind used in prefabricated buildings of Heading 94.06 and not under the residuary SH 6807.90. The counsel also claimed support from CCE, Ahmedabad vs. Encore GRC Pvt. Ltd. 2008 (225) ELT 144 (Tri.-Ahmd.), wherein classification of panel, cornice, arch, column, ceiling, bracket etc. under SH 6807.20 was held to be appropriate on the basis that these were only different names of blocks, slabs etc. capable of being used in prefabricated buildings.
"ABOUT OUR PRODUCTS The end product is the high quality Concrete blocks with practically no dimensional tolerance, extremely low shrinkage, water absorption, moisture content with high density and compressive strength."

(underlining supplied) What is held out, by the appellant, to be their end product cannot be claimed to be any intermediate or component of another product. The pamphlet contains no mention of blocks being used as intermediates or components of prefabricated buildings. On the contrary, it clearly indicates that the hollow concrete blocks manufactured by the appellant are meant for use as masonry units in the construction of walls of buildings. The following excerpts from the pamphlet reveal this fact:

(emphasis supplied) The excerpt found in the above para of the court's judgment in Excon case is from Order-in-Appeal No. SKM/1941/89-BII dated 20.9.1989 which was passed by the Collector (Appeals) sustaining the approval given by the Assistant Collector for 2 Classification Lists filed in 1988 by Excon Company. It was followed by the Collector (Appeals) in Order-in-Appeal No. AND/29/91-BIII dated 18/04/1991 in a similar case of the appellant also.

The appellant in the present case has admitted that the goods in question are similar to Excon Company's product and has claimed support from the above Orders-in-Appeal. They have even taken the plea of res judicata (in their written submissions) with reference to Order-in-Appeal dated 18/04/1991 ibid. But the findings of the Collector (Appeals) were disapproved by the Supreme Court which noted that it was the specific case of the department that the blocks and slabs manufactured by Excon were not used in prefabricated buildings or (in other words) they were not components or intermediates of prefabricated buildings. The Supreme Court approved the department's view and held thus: "........... it is only such blocks as are intermediates or components of prefabricated buildings that get the benefit of the Notification". The blocks & slabs manufactured by Excon were not actually used in prefabricated buildings or (in other words) did not constitute intermediates/components of prefabricated buildings. Therefore Excon failed to obtain a favourable verdict from the apex court. Excon's claim was that the benefit of the Notification was available even to blocks, slabs and lintels falling under Tariff Heading 68.07 even though these did not constitute intermediates or components of prefabricated buildings. The present appellant has also contended in their replies to show-cause notices and in their memo of appeal that their blocks per se / independently attracted the benefit of the Notification without having to constitute intermediates or components of prefabricated buildings. Therefore, the distinction which was sought to be drawn between the two cases, by the learned counsel, is without any rationale. In any case, the interpretation given by the Hon'ble Supreme Court to the relevant provision in the Notification and the decision rendered on that basis cannot be set at naught on any frivolous ground.

9. 21/03/2001

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10. 03/01/2002

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The first 3 SCNs classified the assessee's blocks under heading 68.07, held the goods to be chargeable to duty @ 18% applicable to sub-headings 6807.20 and 6807.90 and denied the benefit of Notification No. 5/97 [Entry No. 117(2)] to the assessee by alleging that, as the blocks were not used in prefabricated buildings, the said benefit was not available to them. These SCNs did not raise a classification dispute in the nature of "SH 6807.20 versus SH 6807.90". The remaining SCNs classified the goods under SH 6807.90 and denied to the assessee the benefit of SH 6807.20 which provided a concessional rate of duty (8%) from April, 1998 to February 2000 and 'nil' rate of duty from March 2000. The SCNs at Sl. Nos. 1 to 8 alleged that the blocks were not used in prefabricated buildings and hence did not constitute intermediates or components of prefabricated buildings of heading 94.06 and, therefore, the benefit of the Notification or SH 6807.20, as the case may be, was not admissible. These notices ignored the expression, "of a kind used", which was there in the text of entry No. 117(2) of the Notification as well as in the text of SH 6807.20 of the CETA Schedule. The remaining two SCNs took note of the above expression but alleged that the blocks did not constitute intermediates or components of prefabricated buildings of heading 94.06 and hence could not be considered to be "of a kind used" in such buildings. Entry 117 (2) of Notification 5/97 is pari materia with the description of goods under SH 6807.20 and the same reads: