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TMI Blog2012 (10) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific heading has to be preferred to the residual heading. In favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... not a new product by adding two separate minerals and as such, the said Chapter Note 1 is not applicable in the present case. This is also supported vide expert opinion. (appeal petition page 123). Further, under identical circumstances, the Hon ble Tribunal in the case of OCL India Ltd. 2009-CESTAT-BANG, after relying upon the Hon ble Apex Court ruling in the case of Deepak Agro Solution Ltd. 2008(227) ELT 52(SC) held that the Chapter Note 1 itself provides that if the context otherwise require it so , the product will still fall under Chapter 25 and not be classified elsewhere. After relying upon Rule 3(b) to the general Rules of interpretation, and considering the pre-dominance of the mineral content in the product, it was held to be classified under Chapter 25. That in the case of the very same Appellant the Hon ble Tribunal reported in 2006 (199) ELT 41, has dealt with the expression except where the context otherwise requires and held that the calcined china clay manufactured by the Appellant will not be outside the purview of Chapter 25 merely because the same was calcined. It is submitted that in the present case, quite interestingly, marble chips and calcite powder h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically classified under CETH 2517, there is no need to resort to residual classification entry in such circumstances. The inferences drawn in the impugned order as regards this issue are wholly erroneous. This is further supported by Chapter Note 3 to Chapter 25, which is discussed herein below. C. The test results show that the item in question was mixture of marble and calcite. Defense: That interestingly, in a given sample, by no stretch of imagination can one state that the same is a mixture of marble and calcite or otherwise, since the constituents thereof are the same, i.e. majority of calcium carbonate(CaC03), minor traces of Magnesium Carbonate (MgCO3) and other impurities. That the chemical report was made merely to support of the case of the department, in a prejudicial and biased manner and ex-facie cannot be relied upon (export opinion at appeal petition page 123). Chapter Note 3 to Chapter 25 specifically states that Any products classifiable in heading 2517 and any other heading of this chapter are to be classified in heading 2517. That thus, calcite, assuming but not admitting to be different from marble per se, at the same time being nothing but powdered marbl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is not manufactured product at all, the classification thereof is immaterial. Under somewhat identical circumstances, the Hon ble Tribunal in the case of Perfect Refractories 2002 (149) ELT 1352 held that crushed clay/batch mixture was not excisable manufactured commodity, as the revenue department had failed to prove its marketability. That the Hon ble Tribunal in the case of Sail v/s. CCE 1991 (54) ELT 414 upheld by the Hon ble Supreme Court as reported in 1997 (96) ELT A.160 had held that mixing of two mineral products would not amount to manufacture. That similar view was taken in the following cases: a) Coromandel Fertilizer Ltd. v/s. CCE 2007 (211) ELT 89 b) Deepak Fertilizers v/s. CC 2002 (139) ELT 328 c) Andhra Cement v/s. CCE 2005 (188) ELT 179 d) CCE V/s. Tara Agencies 2007 (214) E.L.T. 491 (S.C.) That the present case stands on a better footing, inasmuch as it is only mixing the very same mineral while crushing in the present case. That in the case of the appellant the name, character and the use of the final product continues to remain the same as that of the raw material. Moreover, there is no change in either the physical properties or the chemical prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be classified under CETH 3824 by any stretch of imagination. It is submitted that in any case, end use of the product cannot determine the classification of the product, which is supposed to be determined on a bare reading of the Tariff entries readwith Chapter Notes/Section notes alone. The Appellant relies upon the Hon ble Apex Court Ruling in the case of Carrier Aircon Ltd. 2006(199) ELT 577(SC) in support of this contention. Not once does the SCN allege that on account of any specific Chapter Note/Section note or a specific entry in Chapter 38 or for that matter under Chapter 25, that the product deserves classification under Chapter 38 over Chapter 25. While it may be true that HSN may be a safe guide for deciding classification, the Hon ble Supreme Court in the case of Camlin Ltd. v/s CCE 2008 (230) ELT 193 (SC) held that when entries in HSN and the Central Excise Tariff are not aligned, reliance cannot be placed on HSN for purpose of classification. That the above decisions also clearly state that it is for the revenue department to prove that the classification of the product is under a particular heading, a residual one in the present case, and not for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the chemical examiner s opinion can be relied upon to come to conclusion. The product manufactured by the appellant is a mixture of calcite and marble and used in the paint industry and therefore it has to be classified under Chapter 38 only. He also submits that the decisions relied upon by the appellant are not relevant to the case. He also submits that Shri Dinesh Patel, Assistant Works Manager of the assessee has stated that the calcite was added at different compositions which will impart certain properties to make the product suitable for end use application. 5. We take up the issues under consideration as identified and defended by the appellant in the synopsis reproduced above for convenience. 6. The first point is that the product has been obtained by mixing two separate minerals and therefore it is out of the purview of Chapter 25. The Commissioner has taken a view that addition of calcite purchased from the local market while grinding amounts to mixing of two separate minerals. Note 1 to Chapter 25 reads as under: Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oices of the suppliers which show that what was supplied was marble only. He also drew our attention to the letters issued by M/s Sai Minerals to the appellant, wherein they have stated that they are supplying marble lumps. He also drew our attention to the Hawley s Condensed Chemical Dictionary, wherein marble has been defined as a metamorphic form of calcium carbonate. He also shows from the same dictionary that the Calcite is nothing but Calcium Carbonate and the dictionary shows Calcite as most common form of natural Calcium Carbonate. Further, the dictionary also says that it is an essential ingredient of marble. In the dictionary, Calcium carbonate is shown as occurring in nature in different forms. One of them is marble. He submits that this would show that even if the Department s contention that the Calcite powder was purchased and added, it would still amount to adding the same product and ground. 9. He would also draw our attention to the decision of the Tribunal in their own case as reported in 2006 (199) ELT 41 (Tri-Mumbai), wherein it was held that Calcinied China Clay would remain classified under heading 2505 manufactured by them. He also relied upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 2517 and any other heading of this chapter are to be classified under Heading 2517 only; even if the marble powder is considered to have been mixed for grinding, this Chapter covers the appellant s case. We also find ourselves in agreement with the submissions that the specific heading has to be preferred to the general heading and in this case, no evidence is put forth to show that the product is covered by the Chapter 38. Chapter 38, as submitted, is a residual chapter as compared to Chapter 25 and therefore, specific heading has to be preferred to the residual heading. 11. As regards the observation of the Commissioner that the marble and calcite are separately classified under CETH 2515 and 2530, the chapter note 3 to Chapter 25 supports the case of the appellant since the chapter note provides the product manufactured by the appellant would remain under Chapter 2517 even if it is classified under any other heading of Chapter 25. We also find that the chemical examiner s report also supports the case of the appellant. 12. We find considerable force in the arguments in Para E of the synopsis submitted by the ld.Counsel and find that these are applicable. 13. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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