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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 ..... rushed 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 mixture is then mixed with water (40% to 50%) and is charged in high speed mixing tank to make slurry. The slurry is thereafter milled using ball mill to get required particle size. Thereafter the said mills slurry is fed to spray dryers for spray drying at required temperature to get the water dispersible granules of 2 to 4 microns; the product in granular form having particle size of 2-4 microns is then collected and sent for retained (1kg, 3kgs, 6kgs etc) packing; by adding inert materials, the percentage of Sulphur is brought down to 90%. It was also further noticed that the said product is sold & marketed as fertilizers in product form in different retail packing; 1.2 In view of the above observation, the audit party was of the views that the said final product is a commodity distinct from the Raw Sulphur; this fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 filed by Revenue against the Order-In Original No. BHR-EXCUS-000-COM-42 & 43 -2016-17 dated 29-07-2016 passed by the Commissioner of Customs & Central Excise, Bharuch. 2. The brief facts of the case are that the during the course of audit , it was observed by the Audit team that respondent had manufactured a product namely Sulphur - 90% WG with the brand name of "CosavetFertis", which is said to be used as fertilizer. The respondent has classified the said products under Sub-heading 24030090 of 1st schedule to Central Excise Tariff Act, 1985 for the period up to 27.12.2013 and there after under Sub- heading 25030010 of Central Excise Tariff Act, 1985. The respondent had made clearances of the said products under NIL rate of duty, in both the situations. As per the revenue the product Sulphur-90WG manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ultimately decided by the Hon'ble Tribunal on 06.08.12 and the period cover under show cause notices subsequently issued on 24.08.2015 and 05.10.2015. When detailed discussion about "manufacture" was recorded in OIO No. 01/Dem/2010 dated 21.03.2010 while confirming demand of Central Excise Duty and when this order has been set aside by this Hon'ble tribunal, the action of the Ld. Commissioner in dropping the show cause notice proceedings is perfectly legal and valid, since there is no change at all in the situation. 4.1 He also submits that revenue cannot be now permitted to reagitate the issue or to take a different stand in the present case. It is well settled position that when the question arising for consideration on facts almost identical to previous case, the revenue can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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), held that 'Bituminised Hessian based felt' is covered under Chapter Heading 59.09 as contended by the assessee and not under 68.07 as contended by the revenue. 5. Admittedly, no appeal was filed by the Revenue against the earlier decision of the Tribunal in Bitumen Products (India) (supra) and the same has become final. 6. This Court in a catena of cases has consistently taken the view that if an earlier order is not appealed against by the Revenue and the same has attained finality, then it is not open to the Revenue to accept judgment/order on the same question in the case of one assessee and question its correctness in the case of some other assessees. The Revenue cannot pick and choose. (See : Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted 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 Tribunal, it can be seen that the fact and the impugned order is common for the present appeal as well as appeal No. E/12023/2016 which has already been disposed as above. Therefore, nothing more need to be added in the present order. Accordingly, following the order dated 18.10.2022, as reproduced above the demand in the present case also does not sustain. 5. Hence, the impugned order is upheld. Revenue's appeal is dismissed." 5. In view of the above decision in the appellant's own case on the same issue and the facts involved, the impugned order in the present case is not sustainable. Accordingly the impugned order is set aside. The appeal is allowed. (Pronounced in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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