9911796707
TMI Blog2002 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule of that Act and was exigible to duty. The relevant entry then read as follows: Item No. 23-Cement Item No. Tariff Description Rate of duty (1) Grey Portland cement (including ordinary portland cement, portland-pozzolana cement and portland slag cement), masonary cement, rapid hardening cement, low heat cement and water proof (hydrophobic) cement Two hundred and fifty rupees per metric tonne (2) All others Forty per cent ad valorem According to the appellant since its product was not cement, it was not classifiable under T.I. 23 and was classifiable under T.I. 68 which covered all other goods, not elsewhere specified excluding a few specified articles which are not material to the case before us. 3.The appellant's further case is that the manufacturing activity had been started in 1982 with technical assistance from the Khadi and Village Industries Commission in Patna, Bihar and, therefore, was also entitled to the benefit of notification No. 116/75-C.E., dated 30th April, 1975 by which products of village industries failing under tariff Item 68 of the First Schedule to the Central Excise and Salt Act, 1944 were exempted from the whole of the duty of excise lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective of the Superintendent Central Excise before the Collector, Central Excise. The appellant duly approached the Collector (Appeal) who by an order dated 3rd April 1984 set aside the impugned directive but leaving the question of classification open for a fresh determination in accordance with the prescribed procedure. 6.On 30th May 1984 a show cause notice was issued to the appellant by the Superintendent, Central Excise. The appellant gave its reply in which it was contended that lympo was not a cement but was a cement substitute. Material was also submitted and reliance was placed on the Indian Standard specifications to show that there was a marked difference between the compressive strengths and composition of different varieties of cement and lympo. In addition the names of various manufacturers in West Bengal who were manufacturing lympo and taking the benefit of the Exemption Notification dated 30th April 1975 were also submitted. 7.The Collector, Central Excise by his order dated 29th September 1987 accepted that there was a difference between the plasticity and setting property of lympo and ordinary portland cement, but rejected the appellant's case on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Cement clinkers Rs. 200 per [tonne] - Portland cement (including ordinary portland cement, Portland pozzolana cement and Portland slag cement) 2502.21 White cement, whether or not artificially coloured and whether or not with rapid hardening properties 25% 2502.29 Others Rs. 350 per tonne 2502.30 Aluminous cement (Cement fondu) 25% 2502.40 Sagol, ashmoh 25% 2502.50 High alumina refractory cement 25% 2502.90 Other 25%" 10.It is not and cannot be disputed by the respondents that lympo is not classifiable under T.I. 25.02 but under T.I. 25.05 which reads : Heading No. Sub-Heading Description of goods Rate of duty (1) (2) (3) (4) 25.05 2505.00 Mineral substances not elsewhere specified (including clay, earth colours, natural abrasives, sulphurs, slate and stone), lime: Plasters with a basis of Calcium Sulphate, plasters specially prepared for use in Dentistry Nil 11.Although lympo has not been mentioned either in T.I. 25.02 or 25.05, the appellant has drawn out attention to the Budget speech of the Finance Minister in 1988 where in paragraph 135, it is stated : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that lympo had never been known or indeed advertised as 'cement' whether of a superior or inferior quality, but was known as a cement substitute. The respondents have produced nothing to show to the contrary. A substitute necessarily implies a difference in identity. When once it is admitted that lympo is a cement substitute, the Tribunal could not have come to the conclusion that lympo was cement or a variety of cement. In our view, there is no ambiguity in the definition of T.I. 23(1) or 23(2). Even if there were, on the principle that when two constructions can be equally drawn, the one favourable to the tax payer should be adopted, the Tribunal should have held in favour of the appellant. 16.Indeed an earlier Bench of the same Bench of CEGAT, in Nageswara Pozzolana Works Pvt. Ltd. v. Collector of C. Ex. - 1992 (58) E.L.T. 321 had clearly held : "The dictionary meaning of cement cannot be the factor for considering the product in question as cement as cement has a different meaning and trade understanding. The product which is an alternative, is used for such purposes as laying bricks and plastering which function can be obtained by mixture of limestone and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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