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TMI Blog1984 (8) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... sted by letter dated 2-6-1978 to the Assistant Collector of Central Excise, pointing out that there had been no regular show cause notice and hearing and also been denied. The Assistant Collector thereafter adjudicated and the Chemical Examiner, on the basis of whose report the Superintendent had sent his letter, was also cross-examined during the adjudication proceedings. On adjudication, the Assistant Collector of Central Excise, Udaipur under order 2-3-1982 held that the asbestos fibre (fluff) manufactured by the respondent is dutiable under Tariff Item No. 22F and confirmed the demand for the period 24-5-1977 to 5-8-1977 and from 24-11-1977 to 24-5-1978, holding the remaining period of demand to be time-barred. Under his order he had also held that asbestos powder manufactured by the respondent was not subject to duty. On appeal by the respondent, the Collector (Appeals), New Delhi set aside the orders of the Assistant Collector with reference to fluff also. It is against the said order that the appeal has been preferred by the Collector of Central Excise, Jaipur. The respondent has preferred cross objection No. 224/84-D. But since no further relief has been prayed for therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions of Shri Tayal were seen to be well founded and accepting the said contentions we had over-ruled the preliminary objection of Shri Kohli. Thereafter both parties made submissions on the respective stands. 5. The activity carried on by the respondent is described as follows in the affidavit of the Manager of the respondent dated 5-10-1982 filed before the Appellate Collector of Central Excise during the course of hearing of the appeal: (1) I am the Manager and Attorney of the appellant and I am looking after the asbestos (mining and processing) business and its related matters of the Appellants. (2) That crude asbestos ore in form of lumps produced at the Appellant s own mines in Rajasthan is brought to their factory at Bhilwara. The crude lumps are first of all crushed in a jaw crushed to produce smaller size lumps which then in turn are fed to the pulverising machines for grinding to produce asbestos powder. (3) The powder as received from the pulveriser is either sold as such or it is sieved to separate bigger particles (coarse material) from smaller particles (fine material). The bigger particles or the coarse material is sold as fluff to obtain slightly be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re had been no appeal therefrom by the department to the Collector (Appeals) and that there had been no review show cause notice also issued against the said finding. The case before the Collector (Appeals) proceeded only with reference to asbestos fluff and the dutiability thereof. The Collector (Appeals) held against the department on that matter also and hence the present appeal. In the circumstances, it was pointed out to Shri Tayal that the department cannot now be permitted to put forward any case regarding dutiability of asbestos powder. Shri Tayal was, therefore, not permitted to put forward any argument on that point. 7. The case of the Department, as earlier noted, is short and is to the effect that asbestos is in its essential nature a fibrous substance and it does not matter whether the product resulting from the respondent s manufacturing process was fibre of spinnable lengths or fibre of non-spinnable short lengths, as in the case of fluff, and, therefore, so long as the product was asbestos, the same would fall under Tariff Item No. 22F. In support of his contention Shri Tayal relied upon several definitions in well-known scientific books. For instance he pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d contended to the contrary. He pointed out that the variety of asbestos available in Rajasthan, and which alone is quarried and crushed by the respondent, belongs-to the amphibole variety and the nature thereof is not fibrous. He further contended that in that nature of the items mentioned in Item No. 22F, the commodity that would fall under that item would have to be fibre that could be spun into fabric. But this contention is not acceptable since the said Item 22F included slag wool and rock wool also, which admittedly are not spinnable. Therefore, the fact that the amphibole variety of asbestos may not yield spinnable variety of asbestos fibre, would not take the same outside Item 22F of the Central Excise Tariff. But the question would be whether the fluff manufactured by the respondent out of the amphibole asbestos would be fibre or not. 12. The Chemical Examiner had, on analysis of the material manufactured by the respondent, stated his opinion that each of the four samples sent for analysis is asbestos in the form of short fibre. No doubt, no copy of the chemical examination report appears to have been given to the respondent before the issue of the notice dated 20-3-197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to a book Asbestos from Rock to Fabric by Charles Z. Carroll-Porozynski, published by the Textile Institute, Manchester (1956) and another book Asbestos Fundamentals origin-properties-mining-processing : utilization by Hans Berger, translated from German by Ralph. E. Oesper of the University of California and published by Chemical Publishing Company, INC, New York (1963). These two books refer to the manufacturing process by which the fibre is finally separated from the crushed rock and then woven into fabrics, the process of separation consisting of several stages. But the extracts from these books do not make out that asbestos may be of non-fibrous character also. 16. It had been earlier seen that the Delhi High Court, in considering the case of another manufacturer of asbestos had held, on a consideration of various relevant material, that the asbestos obtained by crushing rock and separating the minerals would fall under Central Excise Tariff Item 22F, the process being one of manufacture. The various technical books cited by Shri Tayal conclusively establish that asbestos is always fibrous in character, the classification being with reference to length of the fibr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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