TMI Blog2001 (5) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-heading 2504.21. They were paying excise duty @ Rs. 10.50 per square meter chargeable on marble slabs. On 20-11-1990 they submitted a letter to the Assistant Collector stating therein that cutting of blocks into slabs was not a process of manufacture and, therefore, their product marble slabs was not chargeable to duty. They cited the orders of the Tribunal in the case of Sangmermer India P. Ltd. v. Collector of Central Excise reported in 1989 (42) E.L.T. 725 and CCE v. Jain Marbles reported in 1989 (42) E.L.T. 716, wherein it was held that no duty of excise was leviable on slabs or tiles as the process of cutting of blocks and slabs into tiles is not a process of manufacture. They submitted a classification list claiming that marble slabs and marble crazy are not liable to duty and they paid duty under protest in terms of Rule 233B of the Central Excise Rules, 1944. Since the Department was of the view that the case law cited by the appellants pertained to the period when marble slabs were being classified under TI 68 of the Schedule to the CESA, 1944 prior to the introduction of the new tariff, and since the definition of excisable goods had been amended so as to mean goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumerated at Sl. Nos. 2, 3 and 4 above. In the case enumerated at Sl. No. 5, the Hon ble Rajasthan High Court has also taken the same view. In the case enumerated at Sl. No. 6, the majority view of the Tribunal was that the process of cutting, edging, trimming and polishing of marble blocks to form marble slabs and marble tiles does not amount to manufacture and the Tribunal s order at Sl. No. 7 follows this decision. 4. The contention of the Department is that the marble slabs are specifically included in CET sub-heading 2504.21 and, therefore, they become excisable goods, and the concept of manufacture and marketability are not the determining factors when goods are covered by specific entry in the CETA, 1985, as held by the Tribunal in the case of Safari Industries v. CCE reported in 1991 (54) E.L.T. 308 and Garware Plastics and Polyesters Ltd. v. CCE reported in 1993 (67) E.L.T. 670. However, as held by the Apex Court in the case of Moti Laminates P. Ltd.v. CCE, Ahmedabad reported in 1995 (76) E.L.T. 241, a reference to a particular item in the Tariff Schedule is not decisive and it is always open to an assessee to prove that a particular item, even though specified in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slabs, or whether any further processes such as trimming, polishing, etc., were carried out, is disputed - on the one hand, the lower appellate authority has held that the manufacture of marble blocks is an intricate process involving sawing, edge cutting, trimming, polishing and other processes while on the other hand, the appellants categorically asserted in the appeal memorandum that the only process carried out by them was cutting/sawing of blocks into slabs. This factual dispute will not affect the legal position, in view of the Tribunal s order in the case of Kotah Stone Pvt. Ltd and Tirupati Granites Ltd. (supra) holding that the process of cutting, edging, trimming and polishing of marble blocks to form marble slabs does not amount to manufacture. 6. In the light of the above discussion, and following the ratio of the judgments of the Tribunal listed at Sl. Nos. 1 to 7 in para 3 of the order (pages 3-4) and the judgment of the Hon ble Supreme Court in the case of Moti Laminates (supra), we hold that the goods in question are not excisable. Accordingly, we set aside the impugned order and allow the appeal with consequential relief, if any, due to the appellants in accordan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r product and paying duty accordingly and no dispute has arisen in this particular aspect, shows that this criteria as mentioned in the tariff sub-heading stands duly fulfilled. There is, however, a controversy as to the condition in which the goods were ultimately cleared at the factory gate; that is whether they were regular or irregular size of unpolished and unglazed as claimed. Whereas the Collector (Appeals) has observed that the process of manufacture involves a series of processes with sophisticated machines and the end-product is not the same as the raw material but a different commodity, the appellants have vehemently denied the contention of the ld. Collector (Appeals). These are factual aspects and could be ascertained by further verification, if necessary. However, in this respect, Chapter Note (4) of Chapter 25 is important which reads as follows : 4. In relation to marble slabs of Heading No. 25.04, if a manufacturer clears irregularly shaped marbles, he shall have the option to discharge the duty on the slabs by treating one cubic metre of marble blocks as equivalent to 30 square meters of marble slabs, the volume of the blocks being determined with reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the sides and the justice, that the impugned orders are set aside and the matter is remanded for de novo consideration in accordance with law with the direction that factual aspect may be re-examined and the orders may be passed after giving another opportunity to the appellants to be heard in the matter. It is ordered accordingly. Sd/- (S.K. Bhatnagar) Vice-President DIFFERENCE OF OPINION 11. In view of the difference of opinion between Hon ble Member (J) and the Vice-President, the matter is submitted to the Hon ble President for reference to a Third Member on the following point : Whether in view of the findings of the Hon ble Member (J), the appeal is required to be accepted or in view of the observations of the Vice-President, the matter is required to be remanded. Sd/- (Jyoti Balasundaram) Member (J) Sd/- (S.K. Bhatnagar) Vice-President 12. The point of difference in opinion referred to me is :- Whether in view of the findings of the Hon ble Member (J), the appeal is required to be accepted or in view of the observation of the Vice President, the matter is required to be remanded. 13. The factual backdr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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