//
you're reading...
legal issues

excise duty -the mechanical mixing of polymer with heated bitumen does not amount to manufacture of a new commercially identifiable product and therefore, is not exigible to Excise duty under the Act. =We therefore, hold that PMB or CRMB cannot be treated as bituminous mixtures falling under CSH 27150090 and shall continue to be classified under CSH 27132000 pertaining to tariff for petroleum bitumen.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4055-4056 OF 2009

 
COMMISSIONER OF CENTRAL EXCISE, — APPELLANT

BANGALORE-II

 

 

VERSUS

 

M/S OSNAR CHEMICAL PVT. LTD. — RESPONDENT
WITH
CIVIL APPEAL NO. 5633 OF 2009
AND
CIVIL APPEAL NO. 7142 OF 2010

 
JUDGMENT

 
D.K. JAIN, J.:

 

1. This batch of appeals by the revenue, under Section 35L(b) of
the Central Excise Act, 1944 (for short “the Act”) arises out of
final orders dated 23rd December, 2008 in Appeal No.
E/379/2007; 25th September, 2008 in Appeal Nos. Excise/522 &
523/2007 and 28th October, 2009 in Appeal No. E/225/2009

 

 

1
passed by the Customs, Excise & Service Tax Appellate
Tribunal South Zonal Bench, Bangalore (for short “the
Tribunal”). By the impugned orders in cross-appeals by the
revenue and the assessee, the Tribunal has held that the
mechanical mixing of polymer with heated bitumen does not
amount to manufacture of a new commercially identifiable
product and therefore, is not exigible to Excise duty under the
Act.

 

2. Since these three appeals involve a common question of law,
these are being disposed of by this common judgment.
However, in order to appreciate the controversy, the facts
emerging from C.A. Nos. 4055-4056 of 2009, which was treated
as the lead case, are being adverted to.

 

The respondent in this appeal (for short “the assessee”) is
engaged in the supply of Polymer Modified Bitumen (for short
“PMB”). We may note that in one of the appeals (C.A.
No.5633/2009), the assessee additionally supplies Crumbled
Rubber Modified Bitumen (for short “CRMB”), stated to be a
different kind of modifier. The assessee entered into a contract
with one M/s Afcons Infrastructure Ltd. (for short “Afcons”) for

 

 

2
supply of PMB at their work site at Solur Village, Viswanathpura
Post, Bangalore. As per the agreement, the base bitumen and
certain additives were to be supplied by Afcons to the assessee
directly at the site, where the assessee, in its mobile polymer
modification plant, was required to heat the bitumen at a
temperature of 1600C with the help of burners. To this hot
bitumen, 1% Polymer and 0.2% additives were added under
constant agitation, for improving its quality by increasing its
softening point and penetration. The process of agitation was to
be continued for a period of 12 to 18 hours till the mixture
becomes homogenous and the required properties were met.
The said bitumen in its hot agitated condition was mixed with
stone aggregates which was then used for road construction. The
resultant product was considered to be a superior quality binder
with enhanced softening point, penetration, ductility, viscosity
and elastic recovery.

 

3. `Bitumen’ is classifiable under Chapter Sub Heading 271320.00
and `Polymers‘ are classifiable under Chapter Sub Heading
390190.00 of the Central Excise Tariff Act, 1985 (hereinafter
referred to as “the Tariff Act”). The relevant tariff items read as
follows:

 
3
“Tariff Item Description of goods
2713 Petroleum coke, petroleum

bitumen and other residues of

petroleum oil or of oils obtained

from bituminous minerals.
2713 20 00 Petroleum bitumen

 

 

2715 Bituminous mixtures based on

natural asphalt, on natural

bitumen, on petroleum bitumen, on

mineral tar or on mineral tar pitch

(for example, bituminous mastics,

cut backs)
2715 00 90 Other
3901 Polymers of ethylene, in primary

forms

 

3901 90 Other ”

 
4. The assessee had been paying Central Excise duty on the PMB
processed at their factory in Mumbai but had not paid the same
for the conversion done at the work site. Consequently, a show
cause notice was issued to them by the Commissioner of
Central Excise, Bangalore (hereinafter referred to as “the
Commissioner”), demanding duty in respect of PMB falling
under sub-heading 271500.90 of the Tariff Act, for the period
from 18th August 2004 to 19th September 2006. The
Commissioner adjudicated upon the said show cause notice

 

 

4
and vide Order-in-original, dated 23rd April 2007, held that the
aforesaid process carried out by the assessee amounted to
manufacture of PMB in terms of Section 2(f) of the Act,
irrespective of the fact whether such process was carried out
on their own account or on job work basis and therefore, was
dutiable. He accordingly, confirmed the demand indicated in
the show cause notice. Aggrieved thereby, the assessee filed
an appeal before the Tribunal. Reversing the decision of the
Commissioner, the Tribunal has come to the conclusion that
since PMB cannot be bought and sold in the market as it is fit
for use only in a molten condition, at a temperature around
1600C and resultantly cannot be stored unless kept in
continuous agitated state @ 1000C so as to avoid separation of
polymer and bitumen; the process carried out by the assessee
does not amount to manufacture. A similar view has been
expressed by the Tribunal in other orders which are the
subject matter of these appeals by the revenue.

 

5. Mr. Arijit Prasad, learned counsel appearing for the revenue,
vehemently argued that having regard to the nature of the
process involved, PMB and CRMB are different from bitumen.
According to the learned counsel, ordinary bitumen is heated

 
5
upto a temperature of 2000C, in the Polymer modification plant;
to this heated mixture, polymer is added and samples are
taken; if the samples, are found to be satisfactory, additives are
added and the PMB is either stored or dispatched. It was
submitted that the end products, viz. PMB and CRMB are
different from bitumen, inasmuch as polymers and additives
are the raw materials consumed in the process of manufacture
of the said final products and are therefore, covered by the
definition of the term “manufacture” in Section 2(f) of the Act.
To buttress his submission that PMB and CRMB are exigible to
Excise duty, both falling under a specific entry, learned
counsel referred to the Tariff Act, whereunder, while bitumen
is classifiable under Chapter Sub heading 271320.00, and
polymer is classifiable under Chapter Sub Heading 390190.00,
the finished products, PMB and CRMB are classifiable under
Chapter Sub Heading 271500.90. In support of his submission
that PMB and CRMB are commercially known in the market for
being bought and sold and therefore, satisfy the test of
marketability which is one of the essential conditions for the
purpose of levy of Excise duty, learned counsel commended us
to the decisions of this Court in Medley Pharmaceuticals

 

 

6
Limited Vs. Commissioner of Central Excise & Customs,
Daman1 and Nicholas Piramal India Ltd. Vs. Commnr. Of
Central Excise, Mumbai2. It was also urged that Circular No.
88/1/87-CX.3, dated 16th June, 1987, issued by the Department
of Revenue, Ministry of Finance, clarifying that a slight
modification of the grade or quality of bitumen, brought about
by the process of air blowing to duty paid bitumen did not
amount to manufacture, was wrongly relied upon by the
Tribunal as it had subsequently been modified by Circular No.
88/1/88-CX.3, dated 1st July, 1988, wherein the said department
had clarified that duty would be chargeable on blown-grade
bitumen.

 

6. Per contra, learned counsel appearing on behalf of the
assessees, led by Mr. S.K. Bagaria, senior advocate, while
supporting the decision of the Tribunal, fervently submitted
that based on the documents, evidence and materials on
record, the Tribunal has found, as a fact, that the process of
mixing an insignificant dose of polymer with duty paid bitumen
only enhanced the quality of bitumen and did not amount to
manufacture and therefore, in the absence of any plea of
1 2011 (263) E.L.T. 641 (SC)

2 2010 (260) E.L.T. 338 (SC)

 

 

7
perversity, the finding does not warrant any interference by
this Court. In support of the proposition, learned senior
counsel placed reliance on the decisions of this Court in
Commissioner of Central Excise, Bangalore Vs. Ducksole (I)
Ltd. & Ors.3 and Commissioner of Central Excise, Delhi-III
Vs. Uni Products India Ltd. & Ors.4.

 

7. Learned senior counsel vehemently argued that the
mechanical process of adding polymer and additives to heated
bitumen to bring into existence the so-called new substance,
known as PMB, did not amount to `manufacture’ in terms of
Section 2(f) of the Act. It was explained that by the said
process, only the grade or quality of bitumen is improved by
raising its softening point and penetration, for improving the
quality of the road; but even with the improved quality,
bitumen remained bitumen with the same end use. It was the
say of the learned counsel that a mere improvement in the
quality did not amount to manufacture, as `manufacture’ takes
place only when there is a transformation of raw materials into
a new and different article, having a distinctive name,
character and use, which is not the case here as the end use of
3 (2005) 10 SCC 462

4 (2009) 9 SCC 295

 

 

8
both the articles remained the same. In support of the
proposition, learned senior counsel commended us to a
plethora of decisions of this Court, including M/s.
Tungabhadra Industries Ltd. Vs. The Commercial Tax
Officer, Kurnool5, Commissioner of Central Excise, Gujarat
Vs. Pan Pipes Resplendents Limited6, Crane Betel Nut
Powder Works Vs. Commissioner of Customs & Central
Excise, Tirupathi & Anr.7 and Union of India & Ors. Vs. Delhi
Cloth & General Mills Co. Ltd. & Ors.8.

 

8. It was contended that since the period involved in these
appeals is post substitution of clause (f) in Section 2 of the Act
by Act 5 of 1986, which gives an extended meaning to the
expression “manufacture” by including in terms of sub-clause
(ii) to clause (f), any process “which is specified in relation to
any goods in the Section or Chapter notes of the First Schedule
to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting
to manufacture”, the said provision would be applicable.
However, wherever the legislature intended to give an
extended or artificial meaning to the said expression in

 

5 1961 (2) SCR 14 : AIR 1961 SC 412

6 (2006) 1 SCC 777

7 (2007) 4 SCC 155

8 1977 (1) ELT (J199) (SC)

 

 

9
relation to any goods, it has clearly specified it. According to
the learned counsel, since the addition of polymer or additives
to the bitumen has not been specified in the Section or Chapter
notes of the Tariff Schedule as amounting to manufacture, the
amended definition is of no avail to the revenue. In support of
the contention, heavy reliance was placed on the decisions of
this Court in Commissioner of Central Excise, New Delhi-I
Vs. S.R. Tissues Pvt. Ltd.9 and Shyam Oil Cake Ltd. Vs.
Collector of Central Excise, Jaipur10.

 

9. Relying on the two afore-mentioned Circulars, F.No. 88/1/87-
CX.3, dated 16th June 1987 and F.No.88/1/88-CX.3, dated 1st
July 1988, issued by the Department of Revenue, Ministry of
Finance, clarifying that blown grade bitumen produced by
oxidation of straight grade bitumen is not liable to duty;
learned senior counsel submitted that the present case is on a
much better footing than the blown grade bitumen, inasmuch
as, unlike oxidation, where chemical change takes place, in the
mixing of polymer and bitumen, no chemical change in
bitumen takes place, and therefore, PMB cannot be subjected
to Excise duty as a new commercial commodity. Additionally,
9 2005 (186) E.L.T. 385 (SC)

10 2004 (174) E.L.T. 145 (SC)

 

 

10
reliance was also placed on Circular No.623/14/2002-CX.,
dated 25th February, 2002, wherein the Central Board of Excise
and Customs has clarified that the process of preparation of
Hot Asphalt Mix used in making roads does not amount to
manufacture as contemplated under Section 2(f) of the Act.

 
10. It was argued that merely because bitumen (the basic material)

 

and PMB (the end material) are specified under two different
headings, it cannot be presumed that the process of obtaining
PMB automatically constituted manufacture, unless in fact there
has been a transformation of bitumen into a new and different
product or alternatively, the Section Notes or Chapter Notes
created a deeming fiction by providing an artificial or
extended meaning to the expression `manufacture’ in respect
of the goods in question. In support of the proposition, learned
counsel placed reliance on the decisions of this Court in S.R.
Tissues Pvt. Ltd (supra), Commissioner of Central Excise,
Chennai-II Vs. Tarpaulin International11, Shyam Oil Cake
Ltd. (supra), Commissioner of Central Excise, Mumbai Vs.
Lalji Godhoo & Co.12, Commissioner of Central Excise Vs.

 

 

11 2010 (256) E.L.T. 481 (SC)

12 2007 (216) E.L.T. 514 (SC)

 

 

11
Indian Aluminium Co. Ltd.13 and Hindustan Zinc Ltd. Vs.
Commissioner of Central Excise, Jaipur14, wherein it was held
that merely because the raw materials and the finished product
fall under two different tariff entries, it cannot be presumed
that the process of obtaining the finished product from such
raw materials automatically constituted manufacture.

 
11. Learned counsel also strenuously urged that even if it is

 

assumed that the said process amounted to manufacture, still
PMB cannot be subjected to excise as it is not commercially
marketable. It was argued that for levy of Excise duty, the twin
conditions of `manufacture’ and `marketability’ have to be
satisfied cumulatively. In support of the proposition, reliance
was placed on the decisions of this Court in Hindustan Zinc
Ltd. (supra), Indian Aluminium Co. Ltd. (supra) and Lalji
Godhoo & Co. (supra). Learned counsel also contended that
the burden to prove that the process in question constitutes
manufacture and that the goods so manufactured are
marketable as new goods, known to the market, lies on the
revenue and the same has not been discharged in the present
case. To support the contention, reliance was placed on Lalji
13 (2006) 8 SCC 314

14 (2005) 2 SCC 662

 

 

12
Godhoo & Co. (supra), Metlex (I) (P) Ltd. Vs. Commissioner
of Central Excise, New Delhi15; Hindustan Poles Corpn. Vs.
Commissioner of Central Excise, Calcutta16 and HPL
Chemicals Ltd. Vs. Commissioner of Central Excise,
Chandigarh17.

 
12. Lastly, the learned counsel stressed that in the light of the

 

decisions of this Court in Commissioner of Central Excise &
Customs Vs. Tikatar Industries18, Commissioner of Central
Excise, Navi Mumbai Vs. Amar Bitumen & Allied Products
Private Limited19 and Commissioner of Central Excise,
Mumbai Vs. Tikitar Industries20, the issue raised by the
revenue in these appeals is no longer res-integra, and
therefore, all the appeals deserved to be dismissed.

 
13. Mr. Laxmi Kumaran, learned counsel appearing for the

 

assessee in Appeal No.7142 of 2010, while adopting the
arguments advanced by Mr. Bagaria, emphasised that apart
from the fact that in his case the assessee was mixing the
additives at the site and not in a factory, the percentage of

 

15 (2005) 1 SCC 271

16 (2006) 4 SCC 85

17 (2006) 5 SCC 208

18 2006 (202) E.L.T. 215 (S.C.)

19 2006 (202) E.L.T. 213 (S.C.)

20 2010 (253) E.L.T. 513 (S.C.)

 

 

13
polymer or additives added to bitumen was inconsequential
for determination of the issue at hand, as the predominant test
was whether the treated bitumen underwent any change in its
characteristics so as to acquire a new commercial identity. In
support, learned counsel referred to McNicol & Anr. Vs.
Pinch21, wherein Darling J., delivering the concurring majority
opinion observed that:

 

“You can only make one thing out of another. I

think the essence of making or of

manufacturing is that what is made shall be

different thing from that out of which it is

made.”

 
In other words, the counsel submitted that the same test namely,
whether the product that emerges is something different from the
goods with which it is made, was observed to be the determining
factor. If bitumen, after its processing with additives and
modifiers, remains bitumen; although it is known as PMB, then no
new product emerges. It was asserted that in the present case, the
revenue had failed to prove that with the addition of polymer or
additives, bitumen had undergone any change in its chemical
composition and commercial identity. According to the learned
counsel, if the treated bitumen is not kept at a particular

21 1906 (2) K.B. 352

 

 

14
temperature, bitumen and polymer get separated and revert to
their original state, which shows that no chemical reaction takes
place when both the commodities are mixed.

 

14. Thus, the question which falls for consideration in all these
appeals is whether the addition and mixing of polymers and
additives to base bitumen results in the manufacture of a new
marketable commodity and as such exigible to Excise duty?

 
15. The expression `manufacture’ defined in Section 2(f) of the Act,

 

inter alia includes any process which is specified in relation to
any goods in the Section or Chapter Notes of First Schedule to
the Tariff Act. It is manifest that in order to bring a process in
relation to any goods within the ambit of Section 2(f) of the Act,
the same is required to be recognised by the legislature as
manufacture in relation to such goods in the Section notes or
Chapter notes of the First Schedule to the Tariff Act. Therefore,
in order to bring petroleum bitumen, falling under CSH
27132000, within the extended or deemed meaning of the
expression `manufacture’, so as to fall under CSH 271500900,
the process of its treatment with polymers or additives or with
any other compound is required to be recognised by the

 

 

15
legislature as manufacture under the Chapter notes or Section
notes to Chapter 27.

 
16. Dealing with the aspect of extended or artificial meaning of the

 

expression `manufacture’ in Section 2(f) of the Act in Shyam
Oil Cake Ltd. (supra), this Court had held as under :-

 

“16. Thus, the amended definition enlarges the

scope of manufacture by roping in processes which

may or may not strictly amount to manufacture

provided those processes are specified in the

Section or Chapter notes of the Tariff Schedule as

amounting to manufacture. It is clear that the

Legislature realised that it was not possible to put in

an exhaustive list of various processes but that

some methodology was required for declaring that

a particular process amounted to manufacture. The

language of the amended Section 2(f) indicates that

what is required is not just specification of the

goods but a specification of the process and a

declaration that the same amounts to manufacture.

Of course, the specification must be in relation to

any goods.
XXX XXX XXX XXX
XXX XXX XXX XXX
24. In this case, neither in the Section Note nor in

the Chapter Note nor in the Tariff Item do we find

any indication that the process indicated is to

amount to manufacture. To start with the product

was edible vegetable oil. Even after the refining, it

remains edible vegetable oil. As actual

manufacture has not taken place, the deeming

provision cannot, be brought into play in the

 

 

16
absence of it being specifically stated that the

process amounts to manufacture.”

 
17. Then again, in S.R. Tissues Pvt. Ltd. (supra), a question arose

 

whether slitting and cutting of toilet tissue paper on aluminium
foil amounted to manufacture under Section 2(f) of the Act.
Answering the question in the negative, this Court had
observed thus :-

 

“15…..In order to make Section 2(f) applicable, the

process of cutting/slitting is required to be

recognized by the legislature as a manufacture

under the chapter note or the section note to

Chapter 48. For example, the cutting and slitting of

thermal paper is deemed to be “manufacture”

under Note 13 to Chapter 48. Similarly, Note 3 to

Chapter 37 refers to cutting and slitting as

amounting to manufacture in the case of

photographic goods. However, slitting and cutting

of toilet tissue paper on aluminium foil has not been

treated as a manufacture by the legislature. In the

circumstance, Section 2(f) of the Act has no

application.”

 
18. In the present case, a plain reading of the Schedule to the Act

 

makes it clear that no such process or processes have been
specified in the Section notes or Chapter notes in respect of
petroleum bitumen falling under Tariff Item 27132000 or even
in respect of bituminous mixtures falling under Tariff Item
27150090 to indicate that the said process amounts to

 
17
manufacture. Thus, it is evident that the said process of adding
polymers and additives to the heated bitumen to get a better
quality bitumen, viz. PMB or CRMB, cannot be given an
extended meaning under the expression manufacture in terms
of Section 2(f) (ii) of the Act.

 
19. We may now examine whether the process in question,

 

otherwise amounts to manufacture under the expansive Section
2(f) of the Act. It is trite to state that “manufacture” can be said
to have taken place only when there is transformation of raw
materials into a new and different article having a different
identity, characteristic and use. It is well settled that mere
improvement in quality does not amount to manufacture. It is
only when the change or a series of changes take the
commodity to a point where commercially it can no longer be
regarded as the original commodity but is instead recognized
as a new and distinct article that manufacture can be said to
have taken place. In this behalf the following observations by
the Constitution Bench of this Court in Tungabhadra
Industries (supra) are quite apposite :

 

“In our opinion, the learned Judges of the High

Court laid an undue emphasis on the addition by

 
18
way of the absorption of the hydrogen atoms in

the process of hardening and on the consequent

inter-molecular changes in the oil. The addition of

the hydrogen atoms was effected in order to

saturate a portion of the oleic and linoleic

constituents of the oil and render the oil more

stable thus improving its quality and utility. But

neither mere absorption of other matter, nor inter-

molecular changes necessarily affect the identity

of a substance as ordinarily understood…………

The change here is both additive and inter-

molecular, but yet it could hardly be said that

rancid groundnut oil is not groundnut oil. It would

undoubtedly be very bad groundnut oil but still it

would be groundnut oil and if so it does not seem

to accord with logic that when the quality of the oil

is improved in that its resistance to the natural

processes of deterioration through oxidation is

increased, it should be held not to be oil.”

(Emphasis supplied by us)

 
20. In Delhi Cloth & General Mills Co. Ltd. (supra), yet another

 

Constitution Bench, exploring the concept of manufacture
echoed the following views :
“14……The word `manufacture’ used as a verb is

generally understood to mean as “bringing into

existence a new substance” and does not mean

merely “to produce some change in a substance”,

however minor in consequence the change may be.

This distinction is well brought about in a passage

thus quoted in Permanent Edition of Words and

Phrases, Vol. 26, from an American judgment. The

passage runs thus:-
“Manufacture implies a change, but every

change is not manufacture and yet every

change of an article is the result of

 

 

19
treatment, labour and manipulation. But

something more is necessary and there

must be transformation; a new and different

article must emerge having a distinctive

name, character or use.”

(Emphasis supplied by us)

 
21. In S.R. Tissues Pvt. Ltd. (supra), the issue for consideration

 

was whether the process of unwinding, cutting and slitting to
sizes of jumbo rolls into toilet rolls, napkins and facial tissue
papers amounted to manufacture. While holding that the said
process did not amount to manufacture this Court inter-alia,
held as under :

 

“12…..However, the end-use of the tissue

paper in the jumbo rolls and the end-use of the

toilet rolls, the table napkins and the facial

tissues remains the same, namely, for

household or sanitary use. The predominant

test in such a case is whether the characteristics

of the tissue paper in the jumbo roll

enumerated above is different from the

characteristics of the tissue paper in the form of

table napkin, toilet roll and facial tissue. In the

present case, the Tribunal was right in holding

that the characteristics of the tissue paper in the

jumbo roll are not different from the

characteristics of the tissue paper, after slitting

and cutting, in the table napkins, in the toilet

rolls and in the facial tissues.”

(Emphasis supplied by us)

 

 

20
22. In Deputy Commissioner Sales Tax (Law), Board of Revenue

 

(Taxes), Ernakulam Vs. Pio Food Packers22, a three Judge
Bench of this Court, while deciding whether conversion of
pineapple fruit into pineapple slices for sale in sealed cans
amounted to manufacture, observed as follows:-
“4……Commonly, manufacture is the end

result of one or more processes through

which the original commodity is made to pass.

The nature and extent of processing may vary

from one case to another, and indeed there

may be several stages of processing and

perhaps a different kind of processing at each

stage. With each process suffered, the

original commodity experiences a change.

But it is only when the change, or a series of

changes, take the commodity to the point

where commercially it can no longer be

regarded as the original commodity but

instead is recognized as a new and distinct

article that a manufacture can be said to take

place. Where there is no essential difference

in identity between the original commodity

and the processed article it is not possible to

say that one commodity has been consumed

in the manufacture of another. Although it has

undergone a degree of processing, it must be

regarded as still retaining its original identity.

(Emphasis supplied by us)”

23. Having considered the matter on the touchstone of the
aforesaid legal position, we are of the view that the process of
mixing polymers and additives with bitumen does not amount
to manufacture. Both the lower authorities have found as a fact

 

22 1980 (6) E.L.T. 343 (SC)

 

 

21
that the said process merely resulted in the improvement of
quality of bitumen. Bitumen remained bitumen. There was no
change in the characteristics or identity of bitumen and only its
grade or quality was improved. The said process did not result
in transformation of bitumen into a new product having a
different identity, characteristic and use. The end use also
remained the same, namely for mixing of aggregates for
constructing the roads.

 
24. We also find substance in the contention urged on behalf of the

 

assessee that the answer to the issue at hand stands concluded
by the dismissal of the Civil Appeals filed by the revenue
against the decision of the Tribunal in the case of Collector of
Central Excise, Vadodara Vs. Tikitar Industries23. In that case
the dispute was whether the process relating to improvement
of the quality of bitumen by raising its softening point and
penetration amounted to manufacture of a new and different
commodity. The process involved in improving the quality of
bitumen was oxidation, which converted straight grade
bitumen into air blown bitumen. In revenue’s appeal the
Tribunal had inter-alia held as under :

 

23 2000 (118) E.L.T. 468 (Tri.)

 

 

22
“19. The duty paid bitumen received by the

Assessee is boiled so that foreign substances

like sand and stone settle down; thereafter

the air is blown into the material for

improving the quality of the bitumen by

raising the softening point and penetration;

this makes the bitumen suitable for intended

application. It is seen from the process

undertaken by the Assessees that only the

quality of the product which has already

suffered duty is improved……”

(Emphasis supplied by us)

 
As aforesaid, revenue’s appeal was dismissed by this Court vide
order dated 2nd August, 2006 in Tikatar Industries (supra).

 
25. We therefore, hold that PMB or CRMB cannot be treated as
bituminous mixtures falling under CSH 27150090 and shall
continue to be classified under CSH 27132000 pertaining to
tariff for petroleum bitumen.

 

26. In view of the opinion expressed above, we deem it
unnecessary to deal with the other grounds urged on behalf of
both the sides.

 
27. For the foregoing reasons, no ground is made out for our
interference with the impugned orders passed by the Tribunal
in all the appeals mentioned in paragraph 1 supra. The

 

 

23
appeals, being bereft of any merit, are dismissed accordingly,
with no order as to costs.
…………………………………….

(D.K. JAIN, J.)

……………………………………..

(ASOK KUMAR GANGULY, J.)

NEW DELHI;

JANUARY 13, 2012.
RS

 

 

24

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,028 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: