TMI Blog1995 (7) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... f marble blocks to obtain marble slabs or tiles and similarly cutting of granite blocks into slabs and tiles does not amount to manufacture and this issue was already considered by the Tribunal in favour of the assessee in the case of Collector of Central Excise, Jaipur v. Fine Marble Minerals Pvt. Ltd., Makrana as reported in 1985 (22) E.L.T. 128 and this view was upheld by the Hon ble Supreme Court since the appeal filed by the department against that order was dismissed as reported in 1986 (9) ECR 544 (SC). In that case, it was held that marble slabs sawn from marble blocks were not manufactured goods since there was no transformation by processing into a commercially distinct commodity and the end product was known as marble in trade parlance. Further this issue had come up for consideration before the Tribunal in the case of Associated Stone Industries (Kotah) Ltd. v. Collector of Central Excise, Jaipur - [1992 (60) E.L.T. 639 (Tribunal) = 1992 (19) ETR 630] wherein it was held that cutting, edging, trimming and polishing of marble block does not amount to manufacture as there is no transformation of marble into any other commodity, following the ratio of the Fine Marble M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court and the affirmed view of the Supreme Court was not taken note of by the Tribunal in the case of Indian Granite Ltd., referred to by the other side and further the decision in the case of Indian Granite was distinguished by the Tribunal in the case of Associated Stone Industries (supra) following the ratio of the Fine Marble Minerals since same was approved by the Supreme Court. He submitted that para 7 in the case of Fine Marble Minerals (P) Ltd. is precise on this issue and drew our attention to the relevant para which is as under : 7. We have to analyse in the light of legal principles set out above, whether the Respondents have manufactured a product liable for duty. The process of cutting marble block into marble slabs has been set out in the earlier paragraph. The marble slabs that are merely sawn from the marble blocks cannot be called a distinct commodity. The end product which would come into existence after the activity is completed, would still be called `marble . Thus, the original identity continues despite the several processes undergone. In the trade circles, marble slabs or the marble tiles that are manufactured after cutting the edges, trimming, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance to show that the items are different and distinct from the original and it is not mere cuttings, edging or trimming but something more than has taken place to consider as the process of manufacture and altogether new item emerged. We are not concerned with the logical analysis or the personal opinion of the authorities below in considering the issue but material evidence. Even after passing the order in the case of Fine Marble Minerals and same was approved by the Supreme Court, the department has not taken any steps to substantiate its contention with evidence. In the case of Indian Granite Ltd. referred to by the departmental representative, we find in that matter the party pleaded that it does not amount to manufacture and alternatively it was pleaded that if it amounts to manufacture and it should be deemed as handicrafts. The Tribunal in para 14 of the said judgment had dealt with at length and in the last line in para 14, the Tribunal has observed that we may note that the consultant for the appellants also did not put forward any serious arguments in this regard before us. Hence, the facts and ratio are distinguishable as it was rightly considered in the case of As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present heading thus covers stones in the forms produced by stone-mason, sculpture etc. A lot of examples have been mentioned but from our point of view it is important to note that the heading also covers small mosaic cubes of marble, etc, for various floor or wall coverings etc. This heading however, excludes stone slabs forming the tops of articles of furniture (side boards, wash stands, tables etc.) which are classified in Chapter 94. However, it includes articles such as those used as mantle pieces, steps, door steps etc. 12. In the case of marble products in question in the matter before us the items have been described as marble blocks, slabs, tiles and marble cladding materials. Therefore, each of these items will have to be considered differently in the light of the position so explicitly mentioned in the HSN. Since the processes to which these items are subjected or by which they are obtained have not been mentioned in details, it can only be stated that at this stage that slabs produced by mere sawing of blocks will be outside the purview of Central Excise in the light of the position indicated in the HSN as well as the order of the Tribunal in the case of Fine M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 17-3-1985) 16. In so far as granite is concerned, again the detailed process of manufacture has not been described but the distinction made in HSN is basically similar to the one laid in the case of marble; and granite whether or not roughly trimmed or merely cut by sawing or otherwise into blocks or slabs of a rectangular including square shape has been classified under 25.16 whereas 68.02 covers such stones which [have] been worked beyond the stage of normal quarry product i.e. which [have] been further processed and include the forms produced by stone-mason and sculpture. 17. Futher, in the case of granite, we have a direct judgment on the point delivered in the case of India Granite Limited - 1987 (31) E.L.T. 847 (Tribunal). This judgment takes note of Fine Marbles case (supra) and notices the difference between mere sawing of blocks into slabs and the product emerging after their polishing etc. It classifies polished slab under T.I. 68. Hence, polished slabs and tiles of granite were classifiable under T.I. 68 (old tariff). 18. As regards marble/granite crazy and cladding material, sufficient material is not on record. Whereas AC has described them as tiles of sma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking his submissions on the difference of opinion urged that the appellants herein by the process of cutting and polishing convert marble/granite blocks into marble/granite slabs and marble granite tiles since there is only change in the form of marble/granite and since the goods continue to retain their original identity, the learned Counsel urged, there is no transformation into new excisable and commercial commodity. In this context, the learned Counsel relied upon the Supreme Court in the case of Deputy Commissioner, Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. PIO Food Packers, reported in 1980 (6) E.L.T. 343 (S.C.). The Supreme Court held therein in respect of Pineapple that although a degree of processing is involved in preparing pineapple slices from the original pineapple yet the commodity continues to possess its original identity in spite of the removal of inedible portions, the slicing and thereafter canning it or adding sugar all of which cannot amount to manufacture. The learned Counsel submitted that the Hon ble Member (Judicial) in the proposed order has held that the Tribunal decision in the case of Collector of Central Excise, Jaipur v. Fine Marble M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Granite Limited v. Collector of Central Excise, Hyderabad, reported in 1987 (31) E.L.T. 847 (Tribunal)] is more applicable to the facts of this case but the learned Counsel contended that this very argument when raised before the Tribunal in the Associated Stone Industries (Kotah) Ltd. case did not find acceptance. The learned Counsel argued that the Department has not led any evidence to show that tiles are known as distinct goods from marble as has been observed by the Hon ble Member (Judicial). In respect of dutiability of marble/granite cladding and crazy the learned Counsel referred to and cited the case reported in 1987 (31) E.L.T. 847 (Tribunal) in respect of Granite scrap and the decision of the Tribunal in the case of Collector of Central Excise, New Delhi v. Somany Pilkington s Ltd., reported in 1994 (71) E.L.T. 913 (Tribunal) saying broken glass tiles are non-excisable and not classifiable under residuary Item 68 of erstwhile Central Excise Tariff. The learned Counsel further submitted that the subject matter of these appeals relates only to marble/granite slabe and tiles and not to floor and wall covering. 22. Shri P.K. Jain, the learned Senior Departmental Repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. As regards similar products of granite, the Assistant Collector classified them under Item 68 Central Exicse Tariff ab initio. Arguments of both the sides on the issue of classification/excisability has been largely based on applying the ratio decidendi of precedents.The appellants rely heavily on Collector of Central Excise, Jaipur v. Fine Marble Minerals Pvt. Ltd. reported in 1985 (22) E.L.T. 128 which was upheld by the Supreme Court, and on the subsequent Tribunal decision in Associated Stone Inudstires v. Collector of Central Excise - 1992 (60) E.L.T. 639 (Tribunal) = 1992 (19) ETR 630 which followed Fine Marble Minerlas Pvt. Ltd. decision to hold that processes of cutting, edging, trimming and polishing of marble blocks into slabs and tiles does not amount to manufacture of a new commodity as there is no transformation of marble into any other commodity. On a carefull perusal of these two decisions one has to conclude that so far as marble slabs, and tiles are concerned, the ratio should be held to apply. This is because the Tribunal in the Associated Stone Industries case consciously applied the ratio of the earlier Fine Marbles decision. The appellants in the Associ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Tariff, it will be inappropriate to seek the aid of HSN Explanatory Notes. As has been observed by the Supreme Court in the case of Fenner (India) v. Collector of Central Excise - 1995 (77) E.L.T. 8, the Tariff Item under Central Excise Tariff has to be read by itself. It is not to be read in the light of terms of any heading or relative Section and Chapter notes, as in the case of present Central Excise Tariff Act, 1985. It is also not possible to accept the proposition that the various groupings for classification purposes found in the HSN can be a sole ground or substitute for the evidence of how persons dealing in the goods in the market understand them. Therefore , so far as the dutiability of marble slabs and tiles are concerned there is no reason to ignore the precendent Tribunal decision in the case of Associated Stone Industries which had followed the earlier Fine Marbles decision as endorsed by the Supreme Court. The view expressed in this regard by Hon ble Member (Judicial) is hence agreed to for the the above given reasons. 24. In respect of granite blocks, slabs and tiles, the Department is placing reliance on the Tribunal decision in the Indian Granit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are classifiable under Item 68 Central Excise Tariff. The views expressed by the Hon ble Vice-President are agreed to in so far as classification of granite slabs and tiles [is] concerned. 25. As regards marble/granite, crazy and cladding material, on this aspect Hon ble Vice President has rightly noted in his proposed order the absence of sufficient material on record to arrive at a conclusion. Unless the facts are clear, it will not be possible to apply ratio of precedents cited in this regard. The Assistant Collector in his order has merely remarked that cladding and crazy material (marble) are nothing but tiles/slabs. The Collector (Appeals) has observed that crazy materials are waste and are also used for the same purpose for which tiles are used. The appellants had claimed before the Collector (Appeals) that these are waste material in the form of small borken pieces of uneven sizes and shapes and are not `goods . They have stated that these arise in the course of manufacture and are only rubbish and hence not excisable. Before the Tribunal, they have made similar submissions and have contended that these are not saleable as tiles or slabs. In these circumstances in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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