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TMI Blog2014 (8) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 66/2009 - Order No.A/11165-11166/2014 - Dated:- 1-7-2014 - MR. M.V. RAVINDRAN AND MR. H.K. THAKUR, JJ. For the Appellant : Shri J.C. Patel, Shri Rahul Gajera - Advocates For the Respondent : Shri Alok Srivastava, Dy.Commissioner (AR) JUDGEMENT Per: M.V. Ravindran; 1. These two appeals are disposed of by a common order as the issue raised is same and are in respect of very same assessee. 2. The relevant facts that arise for consideration are that during the course of audit of the records of respondent, it was observed that one of the final product viz. Lost Circulation Control Additives (LCCA for short) are classified by the appellant under CETH No.4701.00 attracting Nil rate of duty, while it is the case of Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the chemical test of the product. It is his submission the product LCCA has some chemical properties and that could be only determined by way of chemical test, which has resulted in a report which indicated that the sample is of off-white colour and its preparation based by tamarind kernel powder, cellulosic fibre. It is his submission that it is also opined by the chemical examiner that the product is other than the products categorized CETH 47.01. He would also submit that the said product was re-tested by CERL, Vadodara and the report also opines that it is other than the product classified in Chapter 47.01 and 47.06. It is his submission that as per the test report and expert opinion, the samples of LCCA preparation obtained by mixi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both sides and perused the records. 7. Revenue is aggrieved by the order of first appellate authority on the ground that the classification as suggested by Revenue of the product LCCA under Chapter 38 has been up-turned by the impugned order is wrong. 8. In order to appreciate the correct view, the findings recorded by the first appellate authority are important, which are as under:- 12. The question of classification is taken up first. The appellants have relied upon the HSN Explanatory Notes under Chapter 47. As per these Notes, the pulp of Chapter 47 consists essentially of Cellulose fibres obtained from various vegetable materials, or from waste textiles of vegetable origin. As per the HSN Notes, other materials wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsisted of cellulose fibre in powder form and obtained from cotton rags was classifiable under Chapter 47 in view of the HSN Notes referred to above and not under Chapter 39. The Department s appeal against the said decision of the Tribunal stands rejected as reported in 2001 (134) ELT A 241 (SC). The appellant s claim for classification under Chapter 47 is further supported by the decision of the Tribunal in the case of Samson Rubber Industries Vs CC - 2005 (185) ELT 419 in which also a product consisting of cellulose fibres was held classifiable under Chapter 47 as against Chapter 38. 14. The Assistant Commissioner has in his order held that the appellants product which is purchased by ONGC is added to mud during oil drilling to increa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngredients. 9. It can be seen from the above findings that the first appellate authority has gone into details of the entire issue and has also considered the HSN explanatory note as well as the judgment of the Tribunal. We find that as against such detailed findings of the fact, Revenue s grounds of appeal do not have any contrary evidence to show that the process of manufacture as explained and considered by the first appellate authority was incorrect and the ingredients which have gone into the manufacturing of LCCA are not the same as has been recorded. In our view, on a question of fact which indicate that the product LCCA is a product derived from cellulosic fibre, we find that the classification of the said product under Chapter 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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