TMI Blog2006 (4) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. 39/05 CE dated 2-5-2005 filed by the assessee. The party is aggrieved with these impugned orders against Commissioner (A)'s order setting aside the Order-in-Original and allowing the Revenue appeal pertaining to classification of the item Solid Concrete Blocks and the grant of relevant benefit of the notification which are the issues involved. 3. In party's appeals No. E/287-288/04, the issues are common. The appeals are taken up together and decided by this common order. The Tribunal by their Final Order No. 1476-77/2002 dated 14-11-2002 set aside the Order-in-Original No. 9/02 dated 28-3-2002 confirming demands in respect of solid concrete blocks manufactured by the assessee and directed the Commissioner re-examine the issue only with regard to the aspect pertaining to classification and grant the benefit of Notification No. 6/02. In Orders-in-Original No.2/02 dated 31-1-2002 and 9/02 dated 28-3-2002 which were subject matter of appeals before the Tribunal which remanded it by Final Order No. 1476-77/2002 dated 14-11-2002 while hold that the demands cannot be confirmed for larger period and penalties were set aside. The Orders-in-Original No. 2/02 and 9/02 granting the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier order passed by the Commissioner in No. 9/02 dated 28-3-2002 dropping the demands for larger period and not imposing penalty has not been set aside by the Tribunal and hence, this order not having been challenged by Revenue, therefore, it cannot be readjudicated by the Commissioner while passing the impugned order No. 9/02. Hence, the confirmation of demands for larger period and imposing penalty in Order-in-Original No. 13/02 dated 9-12-2003 is set aside by allowing the party's appeal No. 287-288/04. 5. The Revenue is aggrieved with Order-in-Original No. 13 and 14/2003 classifying the solid concrete blocks under sub-heading No. 6807.20 of CET and rejecting the Revenue's classification under Sub Heading 6807.90 in Appeal No. 1250/04 and 1272/04. 6. The findings recorded by the Commissioner in impugned order No.13/02 dated 9-12-2003 on the issue of classification in Para 12-20 is noted herein below. The Revenue is aggrieved with these findings on the following grounds. 12. I have perused the technical opinion dated 22-7-2003 given by Dr. B. Venkatarama Reddy of the Indian Institute of Science, Bangalore. In order to appreciate the contents of the report in its proper pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete masonry unit, either hollow (open or closed cavity), or solid or cellular (other than units used for bonding, such as a half block), any one of the external dimensions of which is greater than the corresponding dimension of a brick as specified in IS: 3952 - 1978, and of such size and mass as to permit it to be handled by one man. Furthermore, to avoid confusion with slabs and panels, the height of the block shall not exceed either its length or six times its width." 16. I find that the show cause notice also has relied upon the standards as laid down in the above standards to determine the definition of a Block and has acknowledged that the same standard is being followed by the manufacturer. The expert opinion also suggests that from the structural design point of view the concrete blocks used for any type of construction should possess adequate strength and the strength requirements can vary depending upon the magnitude of loads realized on the component of the wall element. Hence the solid concrete blocks manufactured by the assessee are of such specifications, which can be conveniently ased in pre-fabricated constructions. 17. The assessee has also furnished clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orion Precast in his reply dated 31-12-2001 to the show cause notice issued to him. The assessee's plea that they may be allowed exemption available to SSI units under Notification No.8/2000 dated 1-3-2000 or 9/2000 dated 1-3-2000, as they are not affixing brand name for their products is found to be contrary to facts. The records as well as the samples drawn clearly show that the assessee has affixed the said brand name on the goods. As per the aforementioned notification, exemption is not available if one affixes or uses a brand name of another person. I therefore deny the SSI benefits available in terms of the solid notification to the assessee. The case laws cited by the assessee in this regard are irrelevant as they are applicable only if the assessee does not affix any brand name on the finished goods. 7. We have heard both sides in the matter. 8. The learned DR contended that the HSN Explanatory Notes clearly brings the item under Chapter Sub Heading No. 6810.91 and therefore, the item does not have any facility or device for assembling and hence, it is to be classified only in residuary entry of 6807.90 of CET. He also referred to the advertisement materials/leaf lets/b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not produce any evidence to show that blocks manufactured by them are of the kind used in the pre-fabricated buildings. He referred to enormous evidences produced by the assessee and which has been accepted by the Commissioner. He points out that these evidences have not been challenged by the Revenue in the ground of appeal and therefore, the finding of Commission is required to be confirmed. 10. The learned Counsel referred to the opinion given by Torsteel Research Foundation in India to the assessee who had clearly opined that concrete a blocks is a construction material of a kind that can be effectively used like any other pre-fabricated materials such as slabs, beams, etc., in pre-fabricated buildings. The Malnad College of Engineering Consultancy Centre by their opinion dated 18-10-2003 also opined that building blocks made of plain cement having various modular sizes may be either solid or hollow or cellular and their components/elements used in pre-fabricated building. They have also stated that the items satisfy the clause "blocks, slabs, cement beams and stairs of kind used in pre-fabricated building". The Civil-Aid Technoclinic Pvt. Ltd. by their opinion dated 15-10-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aints Ltd. v. CCE, Calcutta - 2001 (134) E.L.T. 285 (Tri. - Kolkata) (v) Pushpanjali Floriculture Ltd. v. CC, Mumbai - 2005 (179) E.L.T. 47 (Tri. - Mumbai) 11. He also submitted that the Commissioner's order denying the benefit SSI Notification is incorrect, as the appellants had been assigned with the brand name and they were owners. He relied on Bullworker Enterprises reported in 2002 (143) E.L.T. 588; ZARA Shan Chemicals Pvt. Ltd. reported in 2000 (124) E.L.T. 103). The learned Counsel also pointed out that they were eligible for modvat credit as claimed in Appeal No. E/424-425/04 and the denial of modvat is not justified. On this plea, the learned DR submitted that they had not produced documents to extend the benefit of modvat credit and hence, they are not eligible to the same in the light of the Tribunal ruling rendered in the case of Balmer Lawrie and Co. Ltd. reported in 2000 (116) E.L.T. 364; and that of CCE v. Avis Electronics Pvt. Ltd. reported in 2000 (117) E.L.T. 571. 12. On a careful consideration of the submissions pertaining to the classification of the item, we note that the order passed by the Commissioner on this ground is legal and proper for the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a panel pre-fabricated material concludes that it cannot be of a category of blocks/slabs, concrete beams and stairs of pre-fabricated construction. In terms of the judgment cited by the Counsel noted supra, the technical expert cannot express opinion to guide or bind an officer as rendered in the case of Pushpa and other citations (Supra). The Revenue has not made out any grounds with regard to the enormous technical literature produced by the assessee to establish that the item is of a kind used in the pre-fabricated buildings. Rebuttal evidence has also been produced. Therefore, the reliance on their evidence produced by the assessee is required to be upheld. 13. The learned DR relied on the judgment of Excon Construction (supra). In this case the assessee had not produced any evidence to show that blocks manufactured by them were of a kind used in pre-fabricated buildings, hence on that ground the classification under Sub Heading 6807.20 was rejected. In the present case, the assessee has produced enormous evidence to show that the solid concrete blocks manufactured by them were of a kind used in the pre-fabricated buildings of Heading 94.06. In view of the enormous evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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