TMI Blog2023 (9) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... ns placed on record by the appellant along with the opinion given by IIT, Madras before concluding the classification of the above products. Since the valuation under Section 4A of the Central Excise Act, 1944 depends on the classification of the products, the same may be considered after redetermining the classification based on the technical reports. Appeal allowed by way of remand. - HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON'BLE M RS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Appearance: For the Appellant : Mr. B. V. Kumar, Advocate Mr. H. Jayathirtha, For the Respondent : Superintendent (AR) PER : R. BHAGYA DEVI The appellants, M/s. Fosroc Chemicals (India) Pvt. Ltd., (FICPL) are manufacturers of construction chemicals falling under Chapter Heading 38, 32 and 34, of the Schedule to the Central Excise Tariff Act, 1985. They also avail CENVAT credit as per the provisions of the Cenvat Credit Rules. On detailed examination of the products and their manufacturing process, the Commissioner found that the goods are classifiable under different Chapter Headings as against the classification claimed by the appellant. Aggrieved by this order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49020 18 Exposeal UW 382440 32141000 19 Expocrete EUW 382440 32149010 20 Nitocote SN Series 382440 32149010 21 Nitocote VF 382440 32149090 22 Nitofill EPLV 382440 32149090 23 Colpor 382440 32149090 24 Decofill 382440 32149090 25 Brushbond 382440 32149090 26 Brushbond RFX 382440 32149090 27 Brushbond TGP 382440 32149090 28 Brushbond Ti Flexicoat 382440 32149090 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nitocote AP/EP/UR 382440 32081090 51 Nitoflor FC 382440 32149010 52 Nitoprime 382440 32081090 53 Nitoproof 382440 32100090 54 Proofex Torchseal 382440 32100090 2.2 The learned counsel submitted that serial number 1 to 13 of the table below, there is no change in the rate of duty and as such, no revenue implication, hence, they accepted the said classification by the Commissioner. Sl.No. Product As classified by M/s. FCIPL Now reclassified under CSH 1 Conbextra GP series 38244090 38245090 2 Conbextra AT 38244090 38245090 3 Conbextra HES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 Colpor 382440 32149090 24 Decofill 382440 32149090 40 Nitoseal 382440 32149090 41 Nitotile EPW 382440 32149090 42 Nitotile GP 382440 32149090 43 Nitotile Grout 382440 32149090 44 Nitotile GTA 382440 32149090 45 Nitotile MPA 382440 32149090 47 Pimers 20, 4, 7E 382440 32149010 48 Thioflex GG/PG 382440 32149090 49 Dekguard S/Std/S300 382440 32149090 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 382440 32149010 36 Nitoflor SL Range 382440 32149010 37 Nitoflor TF, TS 382440 32149010 38 Nitoflor Uraguard series 382440 32149010 39 Nitomortar series 382440 32149090 46 Nitowrap 382440 32149010 51 Nitoflor FC 382440 32149010 52 Nitoprime 382440 32081090 53 Nitoproof 382440 32100090 54 Proofex Torchseal 382440 32100090 The learned counsel claims that the classification done by the Commissioner without any evidence or any test reports or any exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve accepted the reclassification in respect of products Sl. No. 1 to 13 as listed at para 2.2 and the Commissioner has duly noted that since the rate of duty remains the same there is no revenue implication as such and therefore to this extent the order has been accepted by the appellant. 4.2 Now the dispute is limited to only 41 products out of the 54 products listed at para 2.1. Out of these 41 products, the appellant before us accepts the classification made by the Revenue in 14 products as shown at Sl. No. 14 to 20, 25 to 39, 46, 51 to 54 as listed in para 2.3 supra. Consequent to reclassification, the goods are liable to be assessed under Section 4A, however, the appellant disputes the valuation of these products under Section 4A as against Section 4 of the Central Excise Act, 1944 on the pretext that the products are cleared to industrial consumers in bulk packages and therefore, Section 4A is not applicable in terms of Rule 2A of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Rule 2A of the above Rules reads as follows: The provisions of this chapter shall not apply to a) packaged of commodities containing community of more than 25 kg o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4.3 With regard to the remaining 27 products as listed at para 2.4, we find that the Commissioner has decided the classification without getting the products tested and without considering the test reports placed by the appellant on record. The test report given by ISO-LABS Construction Environmental Materials Testing Laboratory, Bangalore dated 5.3.2019 is placed below: Report from Dr. R. Sundaravadivelu, FNAE, Professor of Department of Ocean Engineering, IIT Madras dated 1.7.2013 is placed below: Appellants in their written submissions dated 1.7.2013 have stated that Dr. R. Sundaravadivelu, FNAE, Professor of Department of Ocean Engineering, IIT Madras had certified regarding the characteristics of each product and there is also letter dated 28.6.2013 from Dr. R. Nagendra, Technical Director from Civil-Aid Technoclinic Pvt. Ltd. wherein technical opinion is given in some of the products. Therefore, we direct the adjudicating authority to consider all the test reports/technical opinions placed on record by the appellant along with the opinion given by IIT, Madras before concluding the classification of the above 27 products as listed at para 2.4. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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