TMI Blog2018 (10) TMI 1532X X X X Extracts X X X X X X X X Extracts X X X X ..... nd resultant product is also the same. Therefore, in view of the judgment of this Tribunal in the case of Dhariyal Chemicals the product in the appellant’s case is also clearly classifiable under Chapter heading 47 which attracts nil rate of duty. Therefore, there is no need to go to the question of limit of SSI exemption. Since, the department’s proposal is to club the clearances of M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises, but the clearances of M/s. Dhariyal Chemicals has been held as nil rated under Chapter heading 47, therefore, the same needs to be deducted from the aggregate value of M/s. Dhariyal Chemicals and M/s. Ganesh Enterprises. The yearly turn-over of M/s. Ganesh Enterprise is well within the limit of ₹ 1.5 Crores, therefore, even if it is assumed that the product of M/s. Ganesh Enterprises is dutiable, but when the products of M/s. Dhariyal Chemicals is not dutiable, the clearances of M/s. Ganesh Enterprise is eligible for SSI Exemption Notification No. 8/2003-Central Excise. Appeal allowed - decided in favor of appellant. - E/533-534/2010, E/845,914/2011-DB - A/12197-12200/2018 - Dated:- 22-10-2018 - Mr. Ramesh Nair, Member (Judicial) And M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted by the department. Accordingly, the classification of the goods under Chapter 47 attained finality which attracts nil rate of duty. Therefore, without going into the issue of clubbing of SSI units, the demand is not sustainable on this ground itself. He further submits that even if the product manufactured by M/s. Ganesh Enterprises is considered as excisable, since the product manufactured by M/s. Dhariyal Chemicals held to be non dutiable under Chapter heading 47, the value of the same needs to be deducted from the total aggregate value for the purpose of exemption Notification No. 8/2003-CE dated 01.03.2003. Accordingly, on this ground also the clearances of M/s. Ganesh Enterprises being within the SSI exemption limit, duty demand is not sustainable. As regards the other appeals, he submits that all these appeals are consequential to main appeal wherein the demand is involved. He placed reliance on the following judgments:- (a) Vinod Solanki vs. UOI - 2009 (233) ELT 157 (b) Motesham Mohd Esmail vs. Special Enforcement Directorate - 2007 (220) ELT 3 (c) G.Tech Industries vs. UOI 2016 (339) ELT (P H) (d) Jindal Drugs Pvt. Limited vs. UOI 2016 (340) ELT 67 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from !he test report of the chemical examiner that the ingredients of the product manufactured by the appellant are as specified in the HSN Notes under Chapter 47. The report confirms that the goods are made from cellulosic fibres, maize starch and tamarind kernel powder. Cellulose fibres are clearly mentioned in the HSN Notes. Maize starch and tamarind powder are also vegetable materials. Further, the product is in powder form. The product therefore meets the requirement of the HSN Notes under Chapter 47. 13. The appellants claim for classification under Chapter 47 is further supported by the decision of the Tribunal in the case of CCE v. Reliance Cellulose Products Ltd. - 2000 (117) E.L.T. 356. In the said decision in Para 7, the Tribunal has noted that the product in that case which consisted of cellulose fibre in powder form and obtained from cotton rags was classifiable under Chapter 47 in view of the HSN Notes referred to above and not under Chapter 39. The Department s appeal against the said decision of the Tribunal stands rejected as reported in 2001 (134) E.L.T. A241 (S.C.). The appellant s claim for classification under Chapter 47 is further supported by the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not the same as has been recorded. In our view, on a question of fact which indicate that the product LCCA is a product derived from cellulosic fibre, we find that the classification of the said product under Chapter 47 as held by first appellate authority is a correct view. 10. We also find that the first appellate authority has held that the Assistant Commissioner has relied upon the opinion of the chemical examiner which indicates that the products are not classifiable under Chapter 47.01. In our view, the first appellate authority was correct in recording that the opinion of the chemical examiner could be restricted to the analysis of the product in question and hence he cannot opine on the classification of the product. Reliance placed by the first appellate authority on the judgment in the case of East West Exporters - 1991 (52) E.L.T. 66, in the case of Danmet Chemicals - 1999 (112) E.L.T. 844 and in the case of Pushpanjali Floriculture Ltd. - 2005 (179) E.L.T. 47 are directly on the point. We agree with the findings recorded by the first appellate authority that chemical examiner should not indicate the classification of the product and should restrict himself to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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