2012 (4) TMI 387 - AT - Central Excise

Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) cannot be treated as Bituminous mixtures falling under Chapter sub-heading No.27150090 and shall continue to be classified under Chapter sub-heading No. 27132000 as decided by Hon ble Supreme Court favoring the order of the Tribunal in appellant s own case Held that - the Revenue is in appeal against the Order-in-Appeal wherein the first appellate authority the judgment of the Tribunal in appellant s own case - since the Apex Court has upheld the order of the Tribunal in respect of very same assessee, no merit in the appeal filed by the Revenue - against revenue.

Summary

Issues:
1. Out of turn hearing of Appeal No. E/240/2009 based on Supreme Court judgment.
2. Classification of Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB).
3. Appeal against Order-in-Appeal No.319/2008/COMMR(A)/RAJ.
4. Merit of Revenue's appeal in light of Supreme Court judgment.

Analysis:
1. The application sought out of turn hearing of Appeal No. E/240/2009 due to the Hon'ble Supreme Court's judgment in Civil Appeal No.5633 of 2009 and 7142 of 2010. The Supreme Court upheld that PMB and CRMB cannot be classified as Bituminous mixtures under Chapter sub-heading No.27150090 but should be under Chapter sub-heading No.27132000. The Tribunal found merit in the request for out of turn hearing based on this ground.

2. The Tribunal noted that the issue of classifying PMB and CRMB was settled by the Supreme Court's judgment. As the Apex Court's decision directly applied to the case at hand, the Tribunal proceeded to dispose of the appeal itself without further delay.

3. The Revenue had appealed against Order-in-Appeal No.319/2008/COMMR(A)/RAJ, which had upheld the Tribunal's decision in the appellant's case. The Tribunal observed that the Revenue was dissatisfied with the first appellate authority's ruling and had brought the matter before them for review.

4. Upon reviewing the records and the Supreme Court's judgment, the Tribunal found that the Apex Court had already considered and affirmed the Tribunal's decision regarding the classification of PMB and CRMB for the same assessee. Consequently, the Tribunal concluded that the Revenue's appeal lacked merit and proceeded to reject it, thereby upholding the lower authorities' decisions.

This detailed analysis covers the issues raised in the judgment, providing a comprehensive understanding of the legal reasoning and outcomes involved in each aspect of the case.