9911796707
TMI Blog1991 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excises, and Salt Act, 1944. 2. The appellants contend that they are a SSI unit set up for manufacture of lime and pozzolana mixture and commenced production on 23-7-1982 and since then, they have been selling the said mixture in the market under the trade name Pozzolime . They contend that they manufacture the said product in accordance with ISI specification for lime pozzolana mixture (IS 4098 - 1983). They contend that the said standard was prepared by the Building Limes Sectional Committee of the ISI and not by its Cement and Concrete Sectional Committee which prepared ISI specification for all varieties of cement. They contend that know-how for the manufacture of pozzolime was obtained by them from Central Road Research Institute, New Delhi under licence given by National Research Development Corporation, New Delhi. They contend that they have been selling the said product pozzolime only as a product of lime and not as a variety of cement. 3. They further contend that on 4-9-1982, Superintendent of Central Excise, Macheria Range, visited their unit and drew samples of pozzolime for the purpose of classification of the product and to decide whether the product merited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burnt lime . The second base material is obtained by powdering shale (a type of clay) and by calcinating it in down draught kilns at about 100 C for more than 8 hours and cooling the resultant product and crushing it in jaw crushers. The second base material is called pozzblina material and it is lime reactive. Burnt lime and pozzolina material are mixed in the ratio of 5.5 : 4.5 by weight. To that mixture is added 3% by weight of gypsum and all are inter-mixed by hand and ground to powder of 150 mesh specification in roller mills. The product pozzolime obtained thus is packed and sold in 40 kg bags. 5. They contend that the Superintendent took two samples of the product on 7-6-1984 to determine the composition and classification of the said product. The samples were sent to the Chief Chemist of Central Cement Research Institute of India, New Delhi. They contend that the reports of the analysis were not intimated to them. 6. They contend that the Assistant Collector had proceeded to classify the product mainly on the basis of the dictionary meaning of the expression cement and the end-use of the product and also by relying on the ruling of the Tribunal as rendered in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heated at least to sintering . 8. The definition of cement as defined in Cement (Quality Control) Order, 1962 made by the Central Government under Section 3 of the Essential Commodities Act, 1965 is defined as follows - any variety of cement manufactured in India and includes blast furnace slag cement, portland pozzolona cement, rapid hardening portland cement, white Portland cement, hydrophobic portland cement, ordinary portland cement, low heat portland cement, high strength ordinary portland cement, cement used for the manufacture of railway sleepers, masonary cement, oil-well cement, super sulphated cement or any other variety of cement which the Central Govt. may, by notification in the Gazette, specify for the purposes of this order . 9. They relied on Cement Quality Control Order, 1962 which refers to several Indian Standards relating to different varieties of cement namely IS-8229-1976 dealing with oil-well cement and IS-6909-1973 dealing with super sulphated cement. They contended that even these two varieties of cement are not covered by TI 23(1) or under TI 23(2). They contended that similarly white portland cement falls under TI 23(2). They also relied on the Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t covered under TI 23(2) of the erstwhile CET. He submitted that the copy of the test certificate relied by the lower authorities was not supplied to the appellants. He submitted that the lower authorities had ignored the ISI specification and the test report was not against the appellants. He contended that a product with gypsum and lime need not become cement. He contended that the lower authorities had wrongly relied on the ruling of the Ajanta Cements as reported in 1985 (21) E.L.T. 828 = 1985 (5) ETR 821. He contended that the product has not been considered as cement in ISI specification covering the product and further Cement Control Act was also not applicable to the product in question. Even in trade, the product was not considered as cement . It only had a function bonding agent . It was marketed as pozzolime and as alternate to cement but by itself it cannot be cement . He contended that the learned Collector had gone wrong in relying on the dictionary meaning of cement and in rejecting the ISI specification. He contended that the learned Collector had classified the product under TI 23(2) of CET considering the product to be masonary cement. He contended that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the department did not dispute the party s contention that it was not being marketed as cement. 13. We have heard both the sides, carefully considered their submission and also perused the material on record and the findings of the lower authorities. The question that arises for our consideration is as to whether to classify the product Pozzolime under TI 23(1) or TI 23(2) or TI 68 of the First Schedule of the erstwhile Tariff. The TI 23(1) and (2) reads as follows - (I) Grey portland cement (including ordinary portland cement, portland - Pozzolana cement and portland slag cement), masonary cement, rapid hardening cement, low heat cement and water-proof (hydrophobic) cement (2) All others" 14. The Assistant Collector in his order has noted that the ingredients of the product Pozzolime are namely Quarts free lime, gypsum muscovite, Biototo, folds par as per the test certificate issued by the National Council for Cement and Building Materials, New Delhi. The appellants contended that this test certificate was not supplied to them and the reliance by the Asstt. Collector on this test certificate vitiates the order. The Asstt. Collector has also proceeded to consider the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector to seek classification under TI 23(1) in their cross-appeal. 17. Now it has to be seen by us as to whether to consider the product as cement mainly on the basis of the presence of lime and gypsum being common in the product in question and that cement and whether ignore the trade understanding, ISI specification and go by the dictionary meaning as relied upon by the Revenue? The burden of proof as is well known for classification, is always on the Revenue. It is also well-settled now that dictionary meaning cannot be relied upon and it is only the trade understanding and manner in which the product is understood in commercial parlance, is the deciding factor for classification. It is also well-settled that ISI specification should be preferred unless there are strong reasons to the contrary as has been laid down by the Supreme Court in the case of Collector of Central Excise v. Krishna Carbon Paper Co. [1988 (37) E.L.T. 480] at page 486. It has been held therein that in the absence of a definition in the Act or the Tariff, or the notification itself, the definition and specification as laid down by ISI, had to be relied upon as representing the general understanding of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, is used for such purposes as laying bricks and plastering which function can be obtained by mixture of limestone and, therefore, cannot be considered as a cement. The manufacturing process of both the products are different and admittedly cement has to satisfy very high standards laid down in the technical literature, ISI specifications and also Cement (Quality Control) Order, 1962, besides other legislations like Essential Commodities Act. The learned Collector has classified this product under TI 23(2) as other categories of cement. In order to fall under this residuary item, it has to in the first instance, be a cement and in case it does not come within the categories of cement specified under Item 23(1), only then it can be brought under residuary item of 23(2) as others . The technical literature, ISI specification as well as the trade understanding has clearly considered this product as different from cement. The Department of Industries, Government of Andhra Pradesh, have issued a letter dated 28-11-1985 directly to the Asstt. Collector which is produced in the paper book, which states that the product has been opined by the National Research Development Corp. of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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