2009 (8) TMI 876 - AT - Central Excise

Summary

Issues:
1. Request to dispense with the pre-deposit of duty amount confirmed against the appellant.
2. Classification of the final product obtained by crushing marble.
3. Addition of calcite powder during the manufacturing process.
4. Interpretation of whether the final product is a mixture of two different products.
5. Consideration of chemical examiner's report.
6. Limitation period for the demand.

Analysis:
1. The appellant sought to dispense with the pre-deposit of duty amount of Rs. 1,47,68,978/- confirmed against them along with an equal penalty under Section 11AC. The duty was confirmed due to the classification of the final product obtained by crushing marble under Chapter Heading 3824 90.

2. The appellant, engaged in manufacturing micron size powdered calcium carbonate, talc, dolomite, and similar products, classified the product under Heading 2517 41 00, attracting a Nil rate of duty. The issue arose as calcite powder was added during manufacturing to prevent lump formation, leading to a dispute on the correct classification.

3. The impugned order classified the product under Chapter 38, considering the addition of calcite powder as a mixture of two different products. However, the appellant argued that crushed marble powder is essentially Calcium Carbonate, and adding the same product during manufacturing does not constitute a different product.

4. The Tribunal considered both sides' submissions and relied on the chemical examiner's report, which indicated similar percentages of Calcium Carbonate and Magnesium Carbonate in the raw material and final product. The presence of these minerals to the same extent led to the rejection of the Revenue's claim of a mixture of two different minerals at a prima facie stage.

5. Additionally, the Tribunal noted that the demand was barred by limitation since the show cause notice was issued on 6-10-08 for the period Sept. 03 to June 08. This limitation aspect further supported the decision to allow the stay petition unconditionally.

6. In conclusion, the Tribunal unconditionally allowed the stay petition, considering the chemical composition of the raw material and final product, the purpose of adding crushed marble powder, and the limitation period for the demand.