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TMI Blog2014 (7) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... e 4 to Chapter 26 of CETA,1985, but its findings and reasoning on other aspects, like the marketability of resultant product, its composition, etc. which led to the conclusion that the resultant product is not excisable, requires a thorough analysis to arrive at a conclusion on its applicability after the insertion of Chapter note 4 to Chapter 26 from 01.03.2011. Also, prima facie, we find that there are four different Laboratories report, wherein, it has been opined that the aforesaid products manufactured/processed by the Applicant out of beach sand are ‘ores’ and not ‘concentrates’; whereas, only one report of RRL, BBSR describes these goods as ‘concentrates’. In nutshell, the issue is highly debatable and needs closure analysis and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of CETA, 1985. The dispute relates to levy of duty on the products, viz.Ileminite, Sillimenite, Rutile, Zircon and Garnet falling under Chapter Heading Nos.26140020, 26179000, 26140031, 26151000 26179000 respectively of CETA, 1985, manufactured/processed in their Mineral Separation Plant (MSP), from beach sand. It is his submission that this issue has already been settled in their favour by the Tribunal vide Order No.A-1032/Kol/2001 dated 27.09.2001 reported as Indian Rare Earths Ltd. Vs. CCE, Bhubeneswar-I : 2002 (139) ELT 352(Tri-Kolkata). The Department, however, has issued the demand notice, subsequent to insertion of Chapter Note 4 to Chapter 26 of CETA,1985 w.e.f. 01.03.2011, for the clearances effected from 01.03.2011 to 31.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the sea beach, is not subjected to any special process or processes to bring about any physical or chemical/structural change in the ores. Therefore, precisely, what they recover from the sea beach sand, are only ores , not concentrates of ores . He has submitted that the principle of law laid down by the Tribunal in their own case, still holds good in spite of insertion of Chapter Note 4 to Chapter 26 of CETA, 1985. 3.1 It is his submission that reliance was placed on the test report of the Regional Research Laboratory, Trivandrum, wherein it has been stated that the Lleminite, Rutile and Monazite etc. fall under the category of ores . He has also relied on the reports of the Department of Atomic Energy, Atomic Mineral Division, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and direction for pre-deposit of the dues confirmed would result in undue financial hardship. 4. Per contra, the ld. Spl. Counsel Shri S.C.Jana appearing for the Revenue has submitted that the terms ores concentrates have not been defied under the Central Excise Tariff Act and applying their meaning as laid down under HSN Explanatory Note, it is clear that the concentrates mentioned in Chapter 26 of CETA, 1985 refer to products, which emerge during the process of removal of impurities so as to render the ores in lumps (or slurry) as they are mined to a stage capable of being used for further metallurgical process. It does not envisage any strengthening or enhancement of metallurgical content. Thus, it is clear that any ore , whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocesses remained as ore only and cannot be called as concentrate , hence no excisable. The ld. Advocate assailed the impugned order on the ground that the issue of levy of excise duty on the aforesaid products extracted from ores by various physical processes has been settled in their own case by the Tribunal 2002 (139) ELT 352 (Tri.-Kolkata). Alternatively, it is submitted that since their processing plant situated within the mining area , therefore, the Applicant are eligible to exemption under Notification No.63/95-CE dated 16.03.95. 5.1 The dispute relates to the period after 01.03.2011, on insertion of the Chapter Note 4 to Chapter 26 of CETA,1985 which reads as under : 4. In relation to products of this chapter, the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though it has been delivered prior to insertion of Chapter Note 4 to Chapter 26 of CETA,1985, but its findings and reasoning on other aspects, like the marketability of resultant product, its composition, etc. which led to the conclusion that the resultant product is not excisable, requires a thorough analysis to arrive at a conclusion on its applicability after the insertion of Chapter note 4 to Chapter 26 from 01.03.2011. Also, prima facie, we find that there are four different Laboratories report, wherein, it has been opined that the aforesaid products manufactured/processed by the Applicant out of beach sand are ores and not concentrates ; whereas, only one report of RRL, BBSR describes these goods as concentrates . In nutshell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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