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TMI Blog2003 (7) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... 131/92 (ADJN) dated 10-9-93. 2. The facts of the case in brief are that the Tariff description of Heading No. 68.03 of the Schedule to Central Excise Tariff Act, 1985, covered slag wools, rock wool and similar mineral wools. Rock wool was exempted from payment of Central Excise duty as per Notification 59/90-C.E. dated 20-3-90. This Notification was amended by Notification No. 38/91-C.E. dated 25-7-91 withdrawing the exemption granted to rock wool. Simultaneously, another Notification was issued namely, Notification 60/91 dated 25-7-91 granting exemption to all goods falling within Chapter 68 and containing more than 25% by weight of fly ash or Phospho Gypsum or both, from the whole of duty of excise. 3. RIL, holder of central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-99. Though the applicant filed appeal and a stay application to CEGAT against this Order-in-Appeal remanding the case to the Assistant Commissioner, the Hon'ble Tribunal rejected the stay application vide its Stay Order 523/2000, dt. 17-7-2000 and the case is pending with the said Assistant Commissioner, Div. VIII, Hyderabad. 4. When the matter stood thus, on the basis of intelligence gathered that RIL were not using fly ash in the manufacture of their products and were availing the exemption wrongly, the officers of the Central Excise, Head Quarters, Anti Evasion, Hyderabad, visited the factory premises of RIL, and the factory premises of a couple of other units who were supposed to have supplied fly ash and also the Regd. Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order dated 28-11-97, against which the applicant had filed an appeal before CEGAT. The said appeal was dismissed as withdrawn by the CEGAT, South Zonal Bench at Bangalore, in their order No. 1264/2002 dt. 25-9-02, whereupon this application has been filed on 22-10-02 in terms of Section 32PA of the Central Excise Act, 1944. 6. In the settlement application, among other things, RIL have have contended that the term 'mineral wool' would cover slag wool and rock wool, and vice versa, the term 'rock wool' would also cover slag wool and mineral wool and accordingly they will be covered by the exemption under Notification No. 59/90-C.E., dated 20-3-90 and hence, no duty would be attracted for the period 17-3-90 to 24-7-91. However, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured and cleared by them, and not of classification under different Central Excise Tariff heads. The Bench enquired whether there are any decided case laws laying down that a dispute on identification of goods to be assessed within the same Tariff Heading is not a classification dispute. 8. The Advocate filed a miscellaneous application dt. 4-1-2003 received in this office on 6-1-2003. It is mentioned therein that the appeal pending before Commissioner (Appeals) for de novo decision on remand by Hon'ble CEGAT vide their Order dt. 15-11-96, and referred to during the hearing on 23-12-2000, has been disposed of by Commissioner (Appeals) by way of further the remand to Assistant Commissioner vide Order-in-Appeal dated 21-12-99, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench by filing the miscellaneous application referred to above. He also referred to certain case laws cited in the Misc. Application and urged that classification of goods cannot be determined on the basis of the exemption Notification. 10. Shri P. Suresh Kumar, Joint Commissioner stated that the Revenue has no objection to the admission of the application as it does not involve a dispute on classification of the goods. His only objection was that the applicant had not filed returns for the entire period and as such the same cannot be entertained in view of clause (a) under first proviso to Section 32E(1) of the CEA, 1944. The Advocate stated that the returns have been filed for the period subsequent to the period 25-7-91 and, hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a few others, but this may not stand in the way of admitting the application per se. The applicant has admitted the duty liability for the period 25-7-91 to 28-2-93. The only request in this context is to allow them the facility of treating the sale price as cum-duty price with which the Revenue has no objection. As for the earlier period, the applicant's contention that the mineral wool is a generic term and will cover rock wool also and similarly rock wool will also cover other mineral wools, vis-a-vis the Department's contention, has to be examined in depth to decide about the dutiability of the goods manufactured during the period 17-3-90 to 24-7-91. The Bench has also taken note of the Advocate's undertaking that the applicant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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