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TMI Blog1994 (1) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... at no Credit of duty under Chapter VAA of the Central Excise Rules was available to them in respect of `THERMEX used by them. He also held that the Credit of duty paid on the goods utilised in their factory under protest is not covered by Rule 233B of the Central Excise Rules, 1944. 2. Shri N. Mookherjee, learned Advocate appeared for the appellants and submitted that the material in question is used by them in their manufacturing process for the manufacture of B-Naphthol which requires the maintenance of a high temperature of nearly 350oC. For this purpose, `Thermex which is a Chemical in liquid form is heated to the required temperature and circulated in steel tubes coiled around the reaction vessel. This ensures that the chemical rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the decision of this Bench in the case of Straw Products Limited reported in 1992 (59) E.L.T. 572 and submitted that the ratio of the same would support their case. He pleaded in the end that their appeal be allowed setting aside the impugned order. 3. Shri D.K. Saha, learned Senior Departmental Representative replied to the arguments advanced by Shri Mookherjee and supported the decision under challenge. He stated that the use of the goods in question is as an appliance for providing the heat for the chemical reaction to take place at the required temperature. Thus they get covered by the exclusion provision in the Explanation under Rule 57A. They are, therefore, ineligible for Modvat benefit. Shri Saha, therefore, pleaded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such duties, already taken credit of by the appellant, I find that the order of the Superintendent was not contested by the appellant. Therefore, the credit having been reversed by the appellant and the order for doing so not being appealed against the issue cannot be reopened, at this stage. The Superintendent s order cannot be merged in the order of the Assistant Collector as the Assistant Collector is not the appellate authority, in respect of order passed by the Superintendent. Secondly, reversal of credit taken in RG-23A register does not amount to payment of duty and as such there cannot be any question of payment of duty under protest under Rule 233B of Central Excise Rules. For the above reasons, the order of the Assistant Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal holding to the contrary that these items cannot be said to be taking part in the chemical process in steel manufacturing but were used for the maintenance of the machines or for making the machine operational, were held to be erroneous. The Court also answered the question whether the products in question were plant, machinery, machine, appliance etc. in the negative. It was held that the items certainly do not come within the dictionary meaning of machines or machinery or instruments or appliances. The items are chemicals and have been classified as such in the Tariff. Merely because the chemicals are being used for the machinery, it does not make the chemicals machinery. It does not matter that the items are used in the mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded his order with the further finding that the reversal of Credit taken in RG-23A register does not amount to payment of duty and as such, there cannot be any question of payment of duty under protest under Rule 233B of Central Excise Rules. The finding about the Superintendent s order for reversal of Credit having become final as the same had not been appealed against is totally of the mark , apart from being factually incorrect. This much-vaunted order of the Superintendent is no order at all much less an appealable order. It was a letter which was dated 4-5-1990. This is extracted below :- This is to inform you that Audit, A. G. Bihar have contended that `thermex is an item which is not directly used as input in or in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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