TMI Blog2018 (1) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.03.95 - Held that: - Since such benefit has not been claimed before the adjudicating authority, the matter is required to be remanded to the adjudicating authority to consider the same in the facts and circumstances of the present case - matter on remand. Appeal allowed in part and part matter on remand. - Excise Appeal Nos.51137 of 2017 - Final Order No.50263/2018 - Dated:- 19-1-2018 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Sh. Gopal Jain, Sr. Advocate with Sh. Devashish Bharuka, Ms. Jaya Bharuka, Ms. Anu Tyagi, Ms. Pooja S. Kapoor, Sh. S. N. Kapoor and Sh. Arun Jain, Advocates for the Appellant Sh. M. R. Sharma, AR for the Respondent ORDER Per: V. Padmanabhan The appeal is against the order-in-original No.12/2017 dated 30.03.2017. The appellant is engaged in mining and sale of manganese ore. Central Excise duty was imposed on various types of ores in the Budget of 2011. The Chapter Note 4 to Chapter 26 of the First Schedule to the Central Excise Tariff Act, 1985 reads as follows: In relation to products of this chapter, the process of converting ores into concentrates shall amount to manufacture. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mines and Minerals (India) Ltd. Vs. CCE ST, Jabalpur, Final Order No. 57214/2017 dated 10.10.2017 wherein the Tribunal has decided an identical issue in favour of the appellant, holding that no duty will be payable. (vi) He also referred to the Apex Court decision in the case of the appellant Manganese Ore India Limited Vs. State of Madhya Pradesh and Others (2017) 1 SCC 81. The Apex Court in the above case has observed that during the processing undertaken by the appellant, only removal of impurities is carried out and no chemical process is carried out. (v) Alternatively, the appellant claimed the benefit of Notification No.63/1995 dated 16.03.1995 (as amended) which grants exemption to manufacturing process carried out within the mine as defined under Section 2(j) of the Mines Act. He added that the processes carried out by the appellant were undertaken within the mines and hence they will be entitled to the benefit of the above notification. He, however, admitted that the alternate plea was not raised before the adjudicating authority. (vi) He also argued that the demand was hit by time bar. (vii) Lastly, he relied on the Tribunal decision in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trates when subjected to crushing, screening, sizing or washing etc . 2. In Budget 2011, a Not was inserted in Chapter 26 of the First Schedule to the Central Excise Tariff to deem the process of converting Ores into Concentrates as a process amounting to manufacture. Both ores and concentrates are classifiable under chapter 26 and while the term Ore‟ is defined in Note 2 of the said chapter, the term concentrate‟ is not. HSN Explanatory Note spell out the scope of the term Concentrate‟ as under: For the purposes of headings 2601-2617, the term concentrates‟ applies to ores which have had part or all of the foreign matter removed by special treatments either because such foreign matter may hamper subsequent metallurgical operations or with a view to economical transport . From the above definition, it is clear that removal of part or all of foreign material is envisaged for conversion of ores into concentrates. Ministry of Mines have clarified that no special treatment is involved in the crushing and screening of ore and the end product can be termed as concentrate only when the grade of ore is sufficiently improved through be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 40% or 60%. Neither, in our opinion, it is relevant to adopt the meaning of concentration any Levy of royalty under the Mines and Minerals (Regulation and Development Act), 1957 and the Rules made thereunder to arrive at the conclusion that processes resulted into manufacture and the resultant product is iron Ore concentrate and chargeable duty. On the contrary, it is safe and prudent to look into the meaning of the concentrate in the HSN than to Mines and Minerals (Regulation and Development Act), 1957 and the Rules made thereunder in view of the principle laid down by the Hon ble Supreme Court in a catena of cases including in the case of Commissioner of Customs Central Excise, Goa v. Phill Corporation Ltd. 2008 (223) ELT 9 (SC), that for classification of the manufactured goods, HSN is a safe guide. Therefore, since the processes undertaken by the appellant on ores, and the resultant satisfies the meaning of concentrate‟ as explained in the HSN, hence in our considered opinion, it should be considered as manufacture as per Sec. 2 (f)(ii) of CEA, 1944 in view of the Chapter Note 2 of Chapter 26 of CETA, 1985 and the resultant Iron Ore concentrate is dutiable. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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