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2002 (10) TMI 94 - SC - Central ExciseWhether for the period 1982 to 1985 the lympo manufactured by the appellant could be classifiable under the T.I. 23(2) of the Schedule to the 1944 Act? Held that - Set aside the impugned decision of the Tribunal and allow the appeal and hold that lympo was not classifiable under T.I. 23(1) or 23(2) but under T.I. 68 of the Schedule to 1944 Act. Since the appellant s case was dismissed in limine by the Tribunal and the respondent authorities the further question whether the appellant was entitled to the benefit of Notification 116/75-CE dated 30th April 1975 had not been considered by them. With this judgment the respondent will consider the appellant s claim to exemption from excise duty under the notification treating the appellant s product for the period in question as classifiable under T.I. 68. In favour of assessee.
Issues Involved:
1. Classification of 'Lympo' for excise duty purposes. 2. Entitlement to exemption under Notification No. 116/75-C.E. 3. Interpretation of Tariff Item 23 of the Central Excise and Salt Act, 1944. 4. Applicability of trade parlance for classification. 5. Impact of amendments in the Central Excise Tariff Act, 1985. Detailed Analysis: 1. Classification of 'Lympo' for Excise Duty Purposes: The main issue in this case was whether 'Lympo', a lime-pozzolana mixture manufactured by the appellant, should be classified as cement under Tariff Item (T.I.) 23 of the Central Excise and Salt Act, 1944, or under T.I. 68, which covers all other goods not elsewhere specified. The appellant argued that 'Lympo' was a cement substitute and not cement, thus it should be classified under T.I. 68. The respondent contended that 'Lympo' was a type of cement and should be classified under T.I. 23, making it exigible to duty. 2. Entitlement to Exemption under Notification No. 116/75-C.E.: The appellant claimed exemption from excise duty under Notification No. 116/75-C.E., dated 30th April 1975, which exempted products of village industries falling under T.I. 68 from the whole of the duty of excise. The appellant argued that their product was certified by the Khadi and Village Industries Commission (KVIC) as a genuine product of village industry, thus qualifying for the exemption. 3. Interpretation of Tariff Item 23 of the Central Excise and Salt Act, 1944: The interpretation of T.I. 23 was crucial. The Collector and the Tribunal had held that 'Lympo' was classifiable under T.I. 23(2) on the grounds that it served the purpose of cement in residential constructions and that inferior varieties of cement like 'Sagol' and 'Ashmoh' were also covered under T.I. 23(2). However, the Supreme Court held that T.I. 23(2) referred to "all other kinds or varieties of cement," and since 'Lympo' was a cement substitute, it could not be classified as cement. 4. Applicability of Trade Parlance for Classification: The Tribunal had applied the trade parlance test, concluding that 'Lympo' was known in the trade as a type of cement. The Supreme Court, however, found that the appellant had provided evidence showing that 'Lympo' was known and advertised as a cement substitute, not as cement. The respondents failed to provide any evidence to the contrary. The Court emphasized that a substitute implies a difference in identity, and thus 'Lympo' could not be classified as cement. 5. Impact of Amendments in the Central Excise Tariff Act, 1985: The 1985 amendment to the Central Excise Tariff Act introduced a new classification where cement and its varieties were listed under Chapter 25, specifically under T.I. 2502, while 'Lympo' was classified under T.I. 25.05. The Supreme Court noted that this statutory distinction between cement and 'Lympo' in the 1985 Act reinforced the argument that 'Lympo' could not have been considered cement under the 1944 Act either. Conclusion: The Supreme Court concluded that the Tribunal and the Collector had incorrectly interpreted T.I. 23. It held that 'Lympo' was not classifiable under T.I. 23(1) or 23(2) but under T.I. 68 of the 1944 Act. The Court set aside the impugned decision of the Tribunal, allowing the appeal, and directed the respondent to consider the appellant's claim for exemption under Notification No. 116/75-C.E., treating 'Lympo' as classifiable under T.I. 68 for the relevant period. The appeal was allowed without any order as to costs.
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