9911796707
TMI Blog1994 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... , it fell under 2502.90 and that from 1-3-1992 under Tariff Item No. 2502.21 whereas according to the appellants the product manufactured by them fell under 23(1) upto 27-2-1986, under 2502.20 from 28-2-1986 and under 2502.21 from 1-3-1992. In the case of M/s. J.K. White Cement Works the adjudicating authority had held that having regard to the facts and evidence available on record, I order that the classification list effective from 1-1-1986 may be read modified as under :- Description of goods Tariff Item No. Type of Duty Rate of Duty White Portland Cement 23(2) B.E.D. 40% ad valorem 3. In the case of M/s. Indian Rayon Industries Ltd., the adjudicating authority held that I hold that `ordinary Portland Cement and `White Cement are two different and distinct commercial commodities. He also further held that, in view of the foregoing facts I hold that White Portland Cement is a different commercial commodity and is correctly classifiable under sub-heading No. 2502.90 of Central Excise Tariff Act, 1985 and chargeable to duty @ 40% ad volorem and reject the claim of the assessee for classification of White Cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other is not covered then the classification for purposes of Central Excise duty would be done as per the nomenclature appearing in the specific entry and resort cannot be had to the residuary entry in which the other nomenclature may fall; that for the purpose of taxation a product could be taxed only as per the nomenclature which attracted less rate of duty; that the Hon ble Tribunal in the case of M/s. Anmol Trading Corporation v. CC, Bombay had held that, In order to classify cement reference is to be made to specifications laid down in the ISI then that would be determinative of the category of cement in which the sample falls ; that the Tribunal had held that, cement which may be described as White Cement was correctly classifiable as ordinary Portland Cement ; that on this analogy, if cement has properties, qualities and characteristics of Rapid Hardening Cement it would be so classified even though it may also be described as white cement; that the Tribunal had also clarified that merely because the sampling question could be used for different purposes, that would not disqualify the sample from being described as ordinary Portland Cement; that the appellant had neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifies as Rapid Hardening Cement. 5. In the case of M/s. J.K. White Cement Ltd. the Collector of Central Excise (Appeals) in his order held, in view of the above discussion, I therefore find that the impugned order in this case classifying the appellant s white cement under the erstwhile Tariff Item 23(2) and new Tariff Heading No. 2502.90 is not sustainable and I set aside the same. I find that the appellant s white cement conforms to all the properties of the rapid hardening cement and cannot be held other than Rapid Hardening Cement. I, therefore order that the appellants white cement to be classified for respective periods under the erstwhile Tariff Item No. 23(1) and the new Tariff sub-heading No. 2502.20 as rapid hardening cement. 6. However, in the case of Indian Rayon Industries Ltd., the Collector, Central Excise (Appeals) held, the appellants placed reliance on two decisions namely M/s. Anmol Trading Corporation given by the Tribunal and one given by me in M/s. J.K. White Cement Works. On perusal of these two decisions, I observe that in those two cases the cement in question was identified with reference to its composition. In other words the physical and chemica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading 2502.20 provides for an inclusive definition which reads, Gray Portland Cement (including Ordinary Portland Cement, Portland Pozolana Cement and Portland Slag Cement), Masonary Cement, Rapid Hardening Cement, Low Heat Cement and Water Proof Cement ; that this clearly shows that all varieties of cement are covered by this entry; that this does not need any specific interpretation to arrive at this conclusion; that alternatively if their product was not ordinary portland cement then it was rapid hardening cement; that a simple reading is sufficient for the purpose; that 2502.90 is the residuary item; that residuary item is selected only when a particular product does not fall in the specific item; that 2502 is a sub-heading based on technical parameters; that the Hon ble Supreme Court in the case of Akbar Badrudin Jeewani v. CC reported in 1990 (47) E.L.T. 161 (SC) observed that when classification is based on technical parameters only technical requirements are exam-ined for classifying a product; that the Hon ble Supreme Court in this case had held :- 56. Considering all these aspects, there is no other alternative but conclude that the slabs of the calcareous stone imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at both colour and use have been discussed by the Tribunal in the judgment of M/s. Anmol Trading Corporation cited supra; that major varieties of cement have been described under 23(1) of the Tariff before 28-2-1986 and under Heading 2502.20 of the Tariff after 28-2-1986; that Tariff description was further changed from 1-3-1992 but there is no question of this description being given effect to retrospectively; that the Doctrine of retrospective effect was not applicable to their case; that the Tariff does not prescribe end-use for classification. In support of his various contentions, the ld. Counsel referred to the case law reported in 1985 (21) E.L.T. 673, 1990 (47) E.L.T. 161, 1982 (10) E.L.T. 917, 1989 (44) E.L.T. 775, 1989 (43) E.L.T. 660, 1985 (20) E.L.T. 70, 1987 (27) E.L.T. 187 and 1988 (37) E.L.T. 152. 8. Smt. J.M.S. Sundaram, the ld. SDR desired to deal with both the appeals by common arguments which she was permitted. She submitted that the basic issue for determination before the Tribunal was whether the white cement manufactured by M/s. Indian Rayon Industries and M/s. J.K. White Cement Works is classifiable under Tariff Entry No. 23(2) of the Tariff prior to 28-2-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s `White Cement ; that ratio of the decision of the Bluestar and Lucoplast case will be applicable to the present case; that Akbar Badruddin case will not be applicable to the facts of the present case; that word `Gray is the adjective and qualifies all varieties of cement classified under Tariff Entry No. 23(1) of the erstwhile Tariff and Tariff Item No. 2502.20 of the Tariff effective from 28-2-1986; that whatever is not Gray will be covered by the entry of `other cement (2502.90). Summing up the ld. SDR submitted that Collector, Central Excise (Appeals ) order in the case of M/s. J.K. White Cement case should be set aside because the Hon ble Supreme Court in the Indian Aluminium case relied on commercial parlance because the facts in the Akbar Badruddin s case are not contradictory to the trade parlance test that cement was of different varieties; that there is nothing commonly sold in the market called White Rapid Hardening Cement; that ISI specifications are not exhaustive test for classification; that ISI specifications are to be read in its entirety; that selection of a particular property of a product according to the ISI specifications does not necessarily qualify the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when a classification list in respect of product is submitted to the department, the department is duty bound to investigate as to the nature of the product before coming to a conclusion as to its classification; that if Tariff is clear then trade parlance cannot be relied upon; that marketability of the product is not relevant for the purpose of classification. Referring to the allegations in the show cause notice, the ld. Counsel for M/s. J.K. White Cement submitted that there was no mention whether there was any change in the process of manufacture; that in the adjudication order it has been held that ISI is not relevant without assigning any reason as to why ISI is not relevant; that though the decision of the adjudicating officer is based on Trade Parlance however, there is no allegation in the show cause notice about this; that use of the product has been taken as ground for classification which is not the deciding factor that if white cement is marketed as talc powder does it mean that it was Talc; that in the adjudication order it has been held that compressive strength is not the criteria for classification without giving any cogent reasons; that the Cement Control Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 excludes white cement falling under 2502.20; that according to the Doctrine of Contemporaneous Exposition white cement according to the understanding of the persons concerned with the administration of Central Excise law fell under Tariff Heading No. 2502.20; this view is supported by the ratio of the decision in the cases reported in 1989 (40) E.L.T. 266 and 1991 (51) E.L.T. 165. 12. The ld. Counsel further submitted that we go to the residuary item in the Tariff only when the product does not fit in any of the slots provided in the specific entries. Elaborating this further, the ld. Counsel submitted that the product manufactured by them precisely fitted in the slot Rapid Hardening Cement and therefore there was no question of classifying it under the residuary entry; that end-use is irrelevant as was held by the Hon ble Supreme Court in the case reported in 1983 (13) E.L.T. 1566; that a distinctive name or badge of identification in the market does not necessarily lead to classification under that heading; that under a residuary entry only such goods are covered which cannot be brought under the various specific entries in the Tariff. In other words the department can establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that it was strange that the department was not agreeing with the fact that Anmol Trading Corporation case is a good law. Reiterating his arguments that there was no distinction in the description of the specified items under 23(1) of the erstwhile Central Excise Tariff and 2502.20 under the new Tariff that the entries were para materia; that Rapid Hardening Cement is a technical quality and therefore ISI specifications and technical literature must be consulted and relied upon as indicated in technical literature and scientific books; that in this view of the matter common parlance will not be applicable in deciding the Tariff classification of Rapid Hardening Cement; that RHC is nothing but a property of cement; that removal of impurities will not create any new product. Concluding his arguments the ld. Counsel for M/s. Indian Rayon submitted that product described as White Cement manufactured by them was nothing but ordinary portland cement conforming to the property of Rapid Hardening Cement and therefore was classifiable under 2502.20. 15. Shri R.K. Anand, the ld. Advocate for M/s. J.K. White Cement Works Ltd. continuing his arguments submitted that for interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law that the chemical report or the ISI specification has to be read in its entirety as one of the tests for determination of classification; that one or two properties cannot be chosen or picked up for determining the classification; that only part criteria cannot be relied upon nor can it be the sole basis for determining the classification of the product; that the contention of the respondents in the case of M/s. J.K. White Cement and the appellant in the case of M/s. Indian Rayon Cement that there is no difference in chemical composition of different types of cement is not correct inasmuch as the presence of Iron-oxide in White Cement should not be more than 1%; that for classification of a particular product the entire set of chemical, physical and other properties are to be taken into consideration; that in the case of `White Cement the first distinguishing property is that Iron-oxide should be less than 1% and that whiteness should be above 70%; that if all the physical and chemical properties are taken in their entirety it would be seen that `White Cement and `Rapid Hardening Cement are two distinct and different commodities; that ISI specifications for these two commod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treat and understand the same in the usual course and that technical and scientific test offer a guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry. The ld. SDR submitted that in the instant case in view of the definition of cement as provided in paragraph 2(a) of the Import Cement (Control) Order, 1978 read with Press Note issued by the Central Government and the authoritative Publication made in the Indian Standard Institution treating white Portland Cement as different commercial commodity to that of ordinary low-heat Portland Cement, it must be held that in commercial parlance the two commodities are known as two different commercial commodities and that there is no scope for contending merely on the basis of some chemical test contrary to the chemical analysis published by the ISI to hold that white cement and ordinary cement are same commodity. The important test for determining whether white cement and ordinary cement is one commercial commodity or not is that if a customer asked for cement from the cement dealer, whether, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residuary entry, it is only an enumerated entry. 20. It was also argued on behalf of the respondent in the case of M/s. J.K. White Cement that what is known to the trade and ordinarily sold in the market is included in the specific entries under the Tariff. The ld. SDR argued that this argument is not correct, which is supported by the fact that when the Tariff was changed in 1992, one of the entries against Heading No. 2502.21 was White Cement whether or not artificially coloured and whether or not with Rapid Hardening Properties and sub-heading No. 2502.29 reads as others. The ld. SDR emphasised that this clearly shows that contention of the respondents is not correct because if we go by what the respondents argued does it mean that items classifiable under the Tariff sub-heading 2502.29 reading as other are not known to the trade or the consumer. On the question of punctuation and use of comma, semi-colon, etc. the ld SDR submitted that commas and other punctuations are used to distinguish the different commodities; that to avoid confusion punctuation marks are used; that specifications are based on the requirement of the trade; that hardening was only incidental prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as nugatory and that the present Bench of the Tribunal was bound to follow the Tribunal s earlier decisions; that in case of M/s. Digvijay Cement Co. Ltd. v. CCE it was held by the Tribunal after perusing the respective Indian standard for Rapid Hardening Cement, and Ordinary Portland Cement we are inclined to agree with the submissions of the ld. Advocate that ordinary Portland Cement is required to achieve compressive strength of 160 Kg./Sq.Cm within a period of 3 days whereas Rapid Hardening Cement is required to achieve at least the same strength within 1 day. There is no evidence that the samples in question answered this test. This position has not been disputed by the ld. JDR. It appears to us that the quality of Rapid Hardening Cement is that which achieves the same compressive strength much faster as compared to ordinary Portland Cement. Once this is kept in mind the test certificates issued by the National Test House explain themselves fully. This Test House is under the Government of India and is one of the highly respected institute specialising in testing. After examining the samples, the test clearly recorded that the samples conformed to ISI specification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2502.30 Aluminous cement (cement foundu) 12% 2502.40 Sagol; Ashmoh Nil 2502.50 High alumina refractory cement 10% 2502.90 Other 40% (c) From 1-3-1992 25.02 Cement clinkers; cement, all sorts 2502.10 Cement clinkers Portland Cement 10% 2502.21 White Cement, whether or not artificially coloured and whether or not with rapid hardening properties 40% + Rs 250 per tonne 2502.29 Other 40% + Rs 250 per tonne 2502.30 Aluminous cement (cement foundu) 10% 2502.40 Sagol; ashmoh Nil 2502.50 High Alumina refractory cement 10% 2502.90 Other 40% 23. From the Tariff Entry it would be seen that prior to 28-2-1986 there were two items. Whereas the first item specified certain commodities, the second Item only was listed as `all others for the sake of convenience, therefore the first entry which describes the goods shall be called the specified entry and the other shall be called as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the assessees that all the Items known in the market are listed in the specified entry that is Tariff Entry No. 23(1) before 28-2-1986 and from 28-2-1986 under Tariff Item 2502.20 is not supported by the fact which will be crystal clear from the fact that after 1-3-1992, the Tariff Entry was amended to read as Tariff Item 2502.21 - White Cement, whether or not artificially coloured and whether or not with Rapid Hardening Properties. 2502.29 - Other . Thus it was pointed out by the ld. SDR that in case contention of the assessees is accepted, then the only Item known in the trade regarding cement was White Cement because no other cement has been specified and they have been clubbed and classified under the Tariff Item No. 2502.29 as others. On the question of specific entry and residuary entry, the ld. SDR submitted that in all the decisions cited and relied upon by the ld. Advocates residuary entry has been used in relation to TI 68 of the erstwhile Central Excise Tariff and that what we are concerned with the classification under one of the sub-items of the same tariff item and hence, those decisions can be clearly distinguished. On the question of specific entry the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the trade and user as White Cement; that the assessees had taken ISI mark [too for] (sic.) as White Cement and that the technical bulletins described the product as white cement which was marked on the bags also; that there was no specific entry for White Cement as claimed by the assessees; that the Entry claimed to be residuary entry actually was not a residuary entry but an enumerated entry under which the products were classified; that the term residuary entry in most of the decisions cited and relied upon by the assessees pertain to Tariff Entry 68. 26. We have carefully considered the arguments and perused the case law. We observe that the Hon ble Supreme Court in the case of Krishna Carbon Paper Co. reported in 1988 (37) E.L.T. 480 had observed that :- Head Note:- Where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning. The trade meaning is one which is prevalent in that particular trade where the goods is known or traded. If special type of goods is subject matter of a fiscal entry then t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read in isolation from what comes before it. Whereas it was argued on behalf of the department that the word `Gray used in the specified entry covered all the Items specified against that entry; that the Punctuation marks are used for the sake of convenience and do not at all mean that after every comma a new item which is distinct from the other is indicated. 29. After hearing the arguments carefully and considering them in the light of the ratio of the decision in the case of Oswal Agro Mills v. CCE reported in 1993 (66) E.L.T. 37 (SC), wherein their Lordships held that :- Doctrine of reading down in the case of Utkal Construction v. State of Orissa reported in 1987 (3) SCC 279 . There is no quarrel with the proposition that in ascertaining the meaning of the word or a clause or sentence in the statute in its interpretation, everything which is logically relevant should be admissible. It is no doubt true that Doctrine of Noscitur A Sociis meaning thereby that it is a legitimate rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them, i.e. when two or more words which are susceptible to ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout colour; that Rapid Hardening Cement may be White or Gray; that technical books support their contention that White Cement fulfils the requirements of most countries to Rapid Hardening Cement; that the British Standards set out that the most essential difference from Rapid Hardening Cement is Whiteness and particularly low alkaline content, that the technical books further mentioned that Danish White Portland Cement is of the Rapid Hardening type and it complies with the requirement of International Standards of Rapid Hardening Cement; that certificate issued by Prof. Kaushik of Roorki University establishes that Ordinary Rapid Hardening Cement may be gray or white. The ld. Advocate argued that it is incorrect to suggest that merely because cement is white or when it is described as white cement it cannot be treated as Rapid Hardening Cement, that appraisal report of Shri Mohan Shenoy of the Department of Chemical Technology of the University of Bombay refers to compressive strength figures for one day, 3 days and 7 days and concludes that J.K. White Cement conforms to Rapid Hardening Cement. Relying on the ratio of Anmol Trading, the ld. Counsels submitted that the Tribunal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion. Technical and scientific tests offer guidance only within limits. 33. On careful consideration of the submissions made by both sides on the question of accepting ISI specifications as the means for classifying a product we have to find out as to what is the purpose of ISI specifications. We find that ISI specifications are meant for maintaining the purity or standard of the product and therefore, it can be used for identification of a product as a last resort when other tests of common or trade parlance etc. are not available. We also find that it is well settled in law now that the ISI specifications for any particular product can be accepted only when the other tests namely Trade/Commercial Parlance is not available to authorities. The Hon ble Supreme Court in the case of Indo International Industries v. Commissioner of Sales Tax, U.P. reported in AIR 1981 SC 1079 held that :- It is well settled that in interpreting Items in statutes like the Excise Tax Acts or Sales Tax Acts whose primary object is to raise the Revenue and for which purpose they classified diverse products, articles and substances resort should be had not to the scientific and technical meaning of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of a particular word by the trade and its popular meaning should commend itself to the authority. and further that, it is clear that meanings given to articles in fiscal statute must be as people in trade and commerce conversant with the subject generally treat and understand them in the usual course. Once the articles are in circulation and came to be described and known in common parlance we then see no difficulty for statutory classification under a particular entry. Technical and scientific tests offer guidance within limits. Referring to the judgment of the Hon ble Calcutta High Court in the case of Poorbanchal International v. U.O.I. reported in 1985 (21) E.L.T. 673 (Cal.) = 1986 (6) ECR 581, the ld. SDR submitted that the Hon ble Calcutta High Court very clearly held that : 6. In this connection reference may also be made to the decision of Supreme Court of India. in Dunlop India Ltd. v. Union of India reported in 1976 (2) SCC page 241 Cen-Cus-150C/75 in which it was held by the Supreme Court that in interpreting the meaning of word in a Taxing Statute, the acceptance of a particular word by the trade and its popular meaning should commend itself to the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above decisions of the Supreme Court and in view of the statutory definition of cement under the Imported Cement (Control) Order, 1978 and the booklets issued by the Indian Standard Institution, it is no longer open for the Collector of Customs to ignore such definition and to contend that the cement in the market parlance also includes white cement. Such a view taken by the Collector of Customs is without any basis or materials on record and such a finding on the face of it is perverse. A perverse view taken contrary to the view prevailing in the market parlance and commercial parlance in the facts and circumstances of the case cannot be accepted." 7. Considering the facts and circumstances of the case and the materials disclosed in the petition and the authorities produced before this Court, I hold that ordinary portland cement and white cement are two different and distinct commercial commodities and as such the importation of white cement was perfectly valid and cannot be said to have been imported in violation of the provision of Section 3 of the Imports Control Order, 1947 and/or any other law in this behalf. Since the petition succeeds on the sole ground that white ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the trade parlance test, the product manufactured by the assessees was White Cement. As White Cement was not specifically mentioned in the Entries specified against the Tariff Item 23(1) or 2502.20, therefore, the Item in dispute is correctly classifiable under Tariff Item 23(2) before 28-2-1986 and under Tariff Item 2502.90 from 28-2-1986. 36. A lot of emphasis was laid by the Advocates of the assessees that the product manufactured by them fell under Tariff Item 23(1) and 2502.20, if we take Contemporaneous Exposition into consideration. Referring to Notification No. 24/91-C.E., dated 25-7-1991 which prescribed concessional rate of duty for cement falling under 2502.20 of the Schedule to CETA, 1985, under the conditions mentioned in the notification. However, the amendment by Notification No. 2/92, dated 2-1-1992 clarified that for the words `exempts Cement the words exempts Cement other than White portland cement conforming to its specification No. 8042 : 1989" and shall be substituted. That this amendment was very clear to show that Tariff Item No. 2502.20 covers white cement. As against this the department referred to Cement Control Order issued under Essential Commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent statute that too in the first few years of its enforcement. In this case also the question whether Toilet soap is a household soap had arisen, within a short period after the Amendment Act of 1964 came into force. Therefore, the understanding by the Executive and its interpretation in bringing toilet soap in Sub-Item (2) `Other Sorts instead of Item 1 `household being of formative period of statutory operation, the Doctrine became inapplicable. 38. Agreeing respectfully with the above ratio of the decision, we hold that the doctrine of contemporanea expositio will not be applicable to the present case as the notification was issued on 25-7-1991 and it was amended on 2-1-1992. 39. It was argued at length on behalf of the assessees that end-use is not a criterion for classification of the product. The counsels relied on the decision of the Hon ble Supreme Court in the case of Dunlop India and Madras Rubber Factory v. UOI reported in 1983 (13) E.L.T. 1566 (SC) cited supra. As against this, the ld. SDR submitted that Market parlance or Trade parlance invariably takes into consideration the picture that is implanted of a particular product in the mind of the consumer or user ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reference to advertisement. We also observe that technical bulletins cannot be treated as advertisements. They are in the form of catalogue which may be utilised for identifying the product of the assessees, we, therefore, hold that these technical bulletins were not advertisements, they were in the nature of catalogues/pamphlets by which the product can be identified and therefore were correctly relied upon by the Revenue for identifying the goods. 43. On behalf of the assessees it was also argued that the onus was on the department to conclusively prove that the product manufactured by them was not classifiable under the specified Tariff Entry and that this onus was not discharged by the department. In support of their contention they cited and relied upon the ratio of the decision of the Tribunal in the case of Smt. Sindhu Ganesh Bali and Others v. CCE reported in 1985 (22) E.L.T. 242 in which the Tribunal had held that : 20. As will be seen from the entries, which have been reproduced in para 2 above, entry (1) is specific and covers a number of varieties of cotton fabrics which have been described thereunder. Entry (2) is a residuary entry, and covers all other cotton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It was held by this Court that the gas generated by the appellant companies was kiln gas and not carbon as known to the trade, i.e., to those who deal in it or who use it. The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore cannot attract Item 14-H in the First Schedule. It was held that it was incorrect to say that because the sugar manufacturer wants carbon dioxide for carbonisation purposes and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as Kiln gas one of the constituents of which is, no doubt, carbon dioxide. The kiln gas which is generated in these cases is admittedly never liquefied nor solidified and is therefore neither liquefied nor solidified carbon dioxide, assuming that it can be termed carbon dioxide. It cannot be called compressed carbon dioxide as understood in the market among those who deal in compressed carbon dioxide. If the Revenue wants to tax a particular goods known as such then the onus is on the Revenue. That they have failed. The Tribunal has analysed all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have quoted and relied upon the Cement Control Order issued by the Government of India from time to time. It was also submitted by the ld. SDR that in the Indian Aluminium Cables case the Hon ble Supreme Court had considered Aluminium Control Order to decide the issue of whether Aluminium Wire Rods - Properzi Rods are species of Wire Rods and, therefore, the ld. SDR submitted that the relevant orders issued during the material time may be taken into consideration for deciding the issue, if necessary. In this case, as Contempornea Expositio was to be considered reliance is required to be placed on similar other material issued by the Government, we therefore, hold that there was nothing wrong in citing and relying upon the Cement Control Order even at the appeal stage as Indian Aluminium Cables and Poorbanchal case was relied upon and cited by the Advocate on behalf of the assessees. 47. Before concluding their arguments, the ld. advocate submitted that in case ISI specification is not accepted as the deciding factor for classification of their product then the entire case law developed so far in the cases decided in respect of Cement will be nullified and that this Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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