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TMI Blog2024 (9) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, Advocate, Appeared for the Appellant Shri Sanjay Kumar, Superintendent (AR) Appeared for the Respondent ORDER The brief facts of the case are as under:- During the audit of Central Excise records, it was noticed that the assessee had manufactured a product viz; Sulphur 90% WG with a brand name of COSAVET FERTIS which is said to be used as fertilizer; the assessee had classified the said product under sub heading 25030090 25030010 of Central Excise Tariff Act, 1985, the assessee had made the clearances of the product under NIL rate of duty. 1.1 It was also further noticed that to manufacture the said product, the assessee procures the Sulphur with 99% purity which is in the form of lumps or granules and which is classifiable as per invoice under Tariff Item No. 25030010. The said lumps or granules of Sulphur are pre-crushed to get a required size in granular form (i.e. less than 15 mm size) with the help of grinding mills particle size separator, discharge by and cyclone separator. The crushed lumps or Sulphur is then mixed with the required quantity of inert material viz. wetting, dispersing agent, binders, stabilizers, fillers etc. (containing approximate 10-11 % content); the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the appellant vide order No. A/11229/2022 dated 18.10.2022 and order No. A/11059/2024 dated 15.05.2024. Therefore in the present case, having the same facts demand is not sustainable. 3. Shri Sanjay Kumar, Learned Superintendent (AR) appearing on behalf of the Revenue, reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and perusal of the record, we find that on the same product having same process department had issued various show cause notices and in all the show cause notices except the present one issue has been settled by this Tribunal vide following three orders dated 06.08.2012, 18.10.2022 and 15.05.2024. One of the latest orders, dated 15.05.2024 is reproduced below:- 4. We have carefully considered the submission made by both the sides and perused the records. We find that the present appeal as well as the appeal No. E/12023/2016 were filed by the Revenue against the common order-in- original No. BHR-EXCUS-000-COM-42-43-2016- 17dated 29.07.2017 and one of the appeal No. E/12023/2016 was disposed of vide order dated 18.10.2022, the said order is reproduced below:- The present appeal has been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is amounting to manufacture under Section 2(f) of Central Excise Act, 1944 and assessee is liable to discharge appropriate tax liability on the resultant product. Ld. Commissioner remained silent on the issue of amounting to manufacture and decided the case solely on the basis of Hon ble CESTAT Order No. A/1240-1243/2012- WZB/AHD dtd. 06.08.2012. 3.2 He also submits that it is settled position that even if the resultant goods belong to the same entry the fact that they are different identifiable goods known as such in the market, the event of manufacture occurs is dutiable. Further, there is no estoppels in taxation matter. He placed reliance on the case of Laminated Packings (P) Ltd. 1990(49) ELT 326 (SC). Thus the disputed product is chargeable to Central Excise Duty and Ld. Commissioner has clearly erred in the present order by not confirming the demands of Central Excise Duty amounting to Rs. 10,11,17,667/- and Rs. 8,58,26,239/- alongwith consequential interest and penalties on the assessee. 4. Shri. Paresh M Dave, learned Counsel appearing on behalf of respondent submits that all the facts and applicable legal provisions remain the same as regards the case ultimatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by the Tribunal, therefore in the present matter Ld. Commissioner by following the judicial discipline correctly dropped the demand of central excise duty. 5.1 Further it is also claimed by the respondent and Ld. Commissioner in his order that Tribunal order dated 06.08.2012 has been accepted by the department and the said decision of the Tribunal had become final and conclusive. If that being the position, we wonder as to how the Revenue is justified in contesting the very same issue in this appeal in respect of same assessee/ respondent. If an issue is decided in favour of any party and had attained finality and accepted by the parties, the affected party in that case is certainly precluded from questioning its correctness in an another case. At this juncture, the decision of the Apex Court reported in 2006 (202) E.L.T. 213 (S.C.) (Commissioner of Central Excise, Navi Mumbai v. Amar Bitumen Allied Products Pvt. Ltd.) is relevant to be quoted. Paragraphs 4 to 7 are usefully extracted hereunder :- 4. The Tribunal relying upon an earlier decision of another Bench of the Tribunal in Commissioner of Central Excise, Calcutta-I v. Bitumen Products (India) - 1999 (107) E.L.T. 58 (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. [2001 (130) E.L.T. 193 (CEGAT)] cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary. 8. Since the point involved in the present case is identical to the point decided in Hindustan Gas and Industries case [1996 (88)E.L.T. 413 (CEGAT)] and the Department having accepted the principle laid therein to the effect that the inserts did not require any precision machining or that any such machining was done by the appellant, cannot be permitted to take a stand different than the principles laid down in the earlier case. 6. Going by the above decisions of the Apex Court, we are of the view that, the impugned order is absolutely in order and we do not find any infirmity therein. The impugned order is upheld. Revenue s appeal is dismissed. From the above order of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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