TMI Blog2008 (9) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... necessity as held by this Tribunal in the appellant s own case on this issue by Final Order Nos. 1256 to 1259/2006 dated 19-7-2006 in Appeal Nos. E/119, 123/2006; E/905/2005 and E/1211/2004 [2006 (204) E.L.T. 313 (T)]. The department had also initiated Show Cause Notice for classification of these gases which arise as a technological necessity and for demanding duty. As the matter was decided ex parte, this Bench, by remand order dated 23-8-2007 by Final Order No. 986/2007 in Appeal E/137/2007, directed the Commissioner to re-determine the case after following the Principles of Natural Justice and also by taking into consideration the judgment rendered by this Bench in the assessee s own case treating the gases as having arisen as a techno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city 3.8 MTPA for the manufacture of Hot Rolled Coils at Toranagallu, Dist. Bellary, Karnataka, using this process. The most significant feature of the Corex process is that it uses conventional coal rather than coke, and as a result, there is less emission than in the traditional process, and so this process is more environment friendly. In this process, the flue gas which emerges is called corex gas, and is a mixture of carbon monoxide, carbon dioxide and hydrogen, with small amounts of other substances. The corex furnace and technology cannot be used to separate this flue gas into its components. The corex gas is used as such, as a fuel for various industrial applications. The common methods for the manufacture of carbon monoxide are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which produces hot metal (Iron) cannot be used for manufacturing carbon monoxide as the technology, plant and machinery etc., are not designed or suitable for manufacture of carbon monoxide. Sd/- DR. DIPAK MAZUMDAR Professor Department of Materials Metallurgical Engineering I.I.T, Kanpur - 208 016 The Revenue did not produce any rebuttal evidence or expert evidence or evidence from the Chief Chemists. They have not taken samples of the item to get it tested to establish that it is Carbon Monoxide. The Revenue has merely relied on the statements given by the officials of the appellant. They gave a Typical analysis of COREX gases in the form of a tabulated column. The same is reproduced below :- Table - 2 : Typical Anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is seriously contested by the appellant on the ground that the statement given by them does not establish per se that the item is carbon monoxide. Further reliance is placed on the Explanatory Notes of HSN, which refers to cocktail gas and it does not refer to such item as carbon monoxide for classification under Chapter 28 and demanding duty at 16%. The main contention of the appellant is that their technical evidence has not been discarded by better evidence and no evidence has been placed by the Revenue to establish that the item, which emerges as a technological necessity, is carbon monoxide for demanding duty at 16% under Chapter 28. 2. The learned Counsel submits that the previous proceedings, which resulted in the case being de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. She also refers to the table extracted supra which clearly shows that carbon monoxide has content of 45.79%. The appellants are trading and marketing the same as Carbon Monoxide and receiving valuable consideration. So long as it is held as carbon monoxide and its uses are that of carbon monoxide, it has to be treated as carbon monoxide alone. In rebuttal, the learned advocate submits that they are not marketing the item as Carbon Monoxide but only as Corex gas. The learned Counsel submits that when there are two alternative headings for classification, the one which is favourable to the assessee should be adopted as held in the case of CCE, Calcutta v. Calcutta Springs Ltd. - 2008 (229) E.L.T. 161 (S.C.). 4. We have carefully consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation or any other scientific material to show that the mixture of gas with 45.79% of Carbon monoxide is required to be treated as carbon monoxide. In view of our prima facie finding, we are of the considered opinion that the earlier order rendered by this Bench in the assessee s own case, treating it as a gas having arisen as a technological necessity is in assessee s favour. The technical evidence produced by the Professors is also in their favour. There is also infirmity in the order in as much as the Revenue has not discharged the burden of classification in this case. In view of this position, the stay application is allowed granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. The stay order will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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