TMI Blog2008 (9) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the appellant does amount to manufacture. Hence, the demand of duty is not correct. - E/522-523/2007 - 1118-1119/2008 - Dated:- 25-9-2008 - Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) Shri Willingdon Christain, Advocate, for the Appellant. Shri K. Sambi Reddi, JDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)].- These appeals have been filed against the Order-in-Original No. 08/2007, dated 27-4-2007 passed by the Commissioner of Central Excise, Bangalore-II Commissionerate. 2. Shri Willingdon Christian, the learned Advocate, appeared on behalf of the appellants and Shri K. Sambi Reddi, the learned JDR, represented the Department. 3. We heard both sides. 4. The issue invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our. They had also cited Board's Circular as per which, modification of Asphalt mixture would not amount to manufacture. They have also stated that the item Polymer Modified Bitumen is not marketable because it has to be always kept in the hot condition and then used. So, they have raised the question of marketability also. They have also relied on the opinion of the retired Chief Chemist, Dr. Badhri Prasad where he has opined that the addition of certain polymers only enhances the properties and, therefore, the same would not amount to manufacture. The Commissioner has not accepted the opinion of the retired Chief Chemist, Moreover, the Commissioner has also not accepted the decisions of the three other Commissioners who have held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade or qualify of bitumen by air blowing in duty paid 'straight grade' bitumen to obtain improved 'air-blown grade' bitumen is not liable to any further duty of excise. The same analogy should be applied here. Further, the point that the appellants pay Service Tax on the process is also very relevant. It is not proper on the Department to levy Service Tax and Excise Duty on the same process simultaneously. Once the appellant pays Service Tax on the said process and the Department has not objected to it, then there is no question of treating the process as amounting to manufacture and levying the same to the Central Excise duty. The appellants have given elaborate details as to why the bitumen is modified by addition of polymer. They have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 3 (S.C.) (m) Union of India v. J.G. Glass Inds. Ltd. - 1998 (97) E.L.T. 5 (S.C.) = 1997 (23) RLT 768 (S.C.) (n) CCE v. Anil Chemical (P) Ltd. - 1985 (21) E.L.T. 889 (T) (o) CCE v. Bakul Aromatics Chemicals Ltd. - 1989 (43) E.L.T. 758 (T) (p) S.D. Fine Chemical P. Ltd. v. CCE - 1991 (56) E.L.T. 393 (T) (q) CCE v. Jayant Oil Mills - 1993 (67) E.L.T. 986 (T) (r) Tungabhadra Inds. Ltd. v. Commr. Sales Tax - AIR 1961 S.C. 412 (s) Moti Laminates P. Ltd. v. CCE - 1995 (76) E.L.T. 241 (S.C.) (t) CCE v. Jayant Oil Mills P. Ltd. - 1989 (40) E.L.T, 287 (S.C.) (u) CCE v. Tikitar Inds. and Tiki Felt Inds. v. CCE - 2000 (118) E.L.T. 468 (T) = 2000 (39) RLT 796 (CEGAT) (v) S.T.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s always processed at the site for it can be used immediately in the hot mix operation. In these circumstances, Polymer Modified Bitumen cannot be bought and sold in the market since it would be fit for use only when it remains in molten condition and at a temperature around 160°C. It cannot be stored unless it is kept in continuous agitated state at 160°C to avoid separation of Polymer and Bitumen. This point has not been appreciated by the learned Commissioner. In these circumstances, we are of the view that the impugned product is not excisable. The process carried out by the appellant does amount to manufacture. Hence, the demand of duty is not correct. Also, we are of the view that there is no justification in invoking the longer perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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