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TMI Blog1997 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... h they then grind and sieve for further use in the manufacture of chemicals. Since the Department was of the view that the product manufactured by them is classifiable under TI 25(5) of the CET w.e.f. 1-8-1983, on account of the revision of TI 25 from that date, and the Department found that the manufacture and clearance had taken place without obtaining central excise licence, without filing of classification list and price list, without maintenance of central excise records and without payment of duty, a show cause notice was issued to the appellants proposing recovery of duty of Rs. 37831.42 on cast iron powder manufactured and cleared during the period 1-8-1983 to 27-9-1983 and also proposing imposition of penalty. The appellants defence that grinding and sieving of scrap in the form of granular powder does not amount to manufacture was negatived by the adjudicating authority who confirmed the duty but dropped the penalty. Hence, this appeal. 3. We have heard Shri Devan Parikh, learned Counsel and Shri K.K. Jha, learned SDR and carefully considered their submissions. 4. The grievance of the appellants that the impugned order has been passed in flagrent violation of the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that the product satisfied the test of cast iron powder falling under TI 25(5). In the face of this clear report from the CRCL, the appellants cannot seek to rely upon the report of the National Test House, Alipore, Calcutta issued to them to the effect that the samples may be categoried as cast iron borings and it is pertinent to note that the samples sent to the National Test House were different from the ones sent to CRCL, New Delhi and was also not forwarded under the supervision of the Central Excise officers and, therefore, cannot be taken into consideration. Further, the retest by the CRCL, New Delhi was carried out at the instance of the appellants and they are bound by it, as held by the Tribunal in the case of Eagle Mineral Products v. CCE, Ahmedabad reported in 1988 (38) E.L.T. 315 (Tribunal) = 1988 (17) ECR 538. Since the retest report is categoric. The denial of permission to cross-examine the Asst. Director (Chemicals), National Test House, Alipore and Chief Chemist, CRCL, New Delhi does not tantamount to violation of principles of natural justice. The appellants contention that melting of cast iron scrap does not amount to manufacture is not correct as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period 1-8-1983 to 27-9-1983 when the exact amount of duty to be paid is ascertained by the department and intimated to them. 6. Thereafter, the Additional Collector, Rajkot issued a show cause notice. They filed a reply pleading that the product is not cast iron powder classifiable under Item No. 25(5) as it is in the form of granules; hence it was not dutiable. They also mentioned that M/s. MMG Corporation, Limbdi (under the jurisdictional control of Rajkot Collector) were manufacturing the very same product but it had not been classified as cast iron powder and no duty was being levied. 7. Thereafter, Central Excise officers had drawn a sample of the product and sent it to the Chemical Examiner, at Kandla and thereafter supplied a copy of the test report. The appellants had thereupon requested for retesting of the sample at Alipore Test House but the Department agreed for retest only at C.R.C.L., New Delhi. 8. They had however, themselves sent a sample of the product to the National Test House (NTH), Alipore and in this respect a test certificate was issued. According to this certificate, each of the sample is of cast iron and the product can be categorised as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers and could not be considered as representative sample. Therefore, the Alipore Test House s report also could not be taken into consideration by the Additional Collector. Furthermore, the sample was tested twice by the departmental officers and since retest was done at the behest of the appellants, he was bound by the results thereof. According to this test report, the product was in the form of cast iron powder, therefore, it was classifiable and dutiable under Tariff Item No. 25(5) of the old Tariff. 20. The appellants had been given sufficient opportunities for making their submissions before the Additional Collector and in the above circumstances, there was no cause for allowing cross examination of the expert of Alipore Test House or the departmental one; Therefore, there was no violation of the principles of natural justice. 21. The party has been simply adopting delaying tactics; therefore, the Addl. Collr. had no go but to pass the impugned order without further waiting. 22. Since the iron and steel powder is a commodity known in the market; therefore, it was excisable as per the Supreme Court decision in the case of DCM s case. The Tribunal s order in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the particles of the product were of a particular dimension which will allow them to be considered as those in powder form is therefore material. In this respect, the Department has rightly relied upon the ISI Glossary of Terms relating to Powder Metallurgy which shows that powder consists of discrete particles of dry material with a maximum dimension of 1000 microns and the Central Revenue Control Laboratory had tested the samples and found that each sample is composed mainly of iron together with carbon, carbon contents in each case is more than 1.9% by weight and each passes through 1000 micron sieve completely showing that maximum dimension of particle is less than 1000 micron. Hence it is obveous that the product is in the form of cast iron powder which is produced by subjecting `BHUCKO to grinding and sieving. I, therefore agree with the conclusion of my ld. Colleague that the product in question was classifiable under T.I. 25(5). 28. I also notice that the ld. Collector has rightly refrained from imposing penalty in the circumstance of this case and therefore there was no cause for any grievance on this score. However, the demand having been issued within the normal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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