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2014 (7) TMI 313 - AT - Central ExciseWaiver of pre-deposit of duty - Manufacture - Marketability - process of converting ‘ores’ to ‘concentrates’ - products, viz.Ileminite, Sillimenite, Rutile, Zircon and Garnet - deemed manufacture - The claim of the Applicant is that even after the insertion of this Chapter Note, since the goods emerge after processing of beach sand ores, which continue to remain as ‘ores’ only and are not converted into ‘concentrates’, hence no manufacture takes place and accordingly, no duty is payable. - Held that:- that even though the earlier decision of the tribunal 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, the issue is highly debatable and needs closure analysis and interpretation of the relevant Chapter Note, HSN meaning of concentrates vis-`-vis the process of manufacture and gamut of case laws on the subject including the decision of this Tribunal in the Applicant’s own case [2001 (9) TMI 167 - CEGAT, KOLKATA]. Since provisions of the Mining Act are applicable to their processing plant situated in the Mining area, and the definition of ‘mining’ as prescribed under the Mines Act being incorporated in the exemption Notification No. 63/95 CE dt,16.03.1995, accordingly, the products manufactured/processed by them could fall under the said exemption Notification No.63/95 dated 16.03.1995. - Applicant could able make out a strong prima-facie case for total waiver of pre-deposit of dues adjudged. Accordingly, pre-deposit of all dues adjudged is waived and its recovery stayed during pendency of the appeal - Stay granted.
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