TMI Blog2002 (10) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Kumar and Nischal K. Neeraj, Advocates, for the appellant. Yashank Adhyaru, Senior Advocate (Sanjiv Sen and B. Krishna Prasad, Advocates, with him), for the respondent. [Judgment per : Ruma Pal, J.]. - The issue in this case relates to the classification for the purposes of excise duty of a product manufactured by the appellant, which the appellant claims is a cement substitute and not cement. The product is 'Lympo' which is a lime - pozzolana mixture which the appellant manufactures under the trade-name "Gajaraj Lympo". The respondent's claim that lympo is in fact a variety of cement and was exigible to duty as such. 2.The issue has arisen in the context of the Central Excise and Salt Act, 1944 prior to its amendment in 1985. Cement was then specified in Tariff item (T.I.) 23 in the First 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 (hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant filed a writ application before the High Court at Ranchi vide C.W.J.C. No. 691 of 1983 challenging the demand. The Court directed a fresh sample of the appellant's product to be drawn. This was done on 14th September 1983 and sent to the Director General, National Test House, Alipore, Calcutta. The Test certificate states: "the said sample fails to meet the requirement as covered under tariff item No. 23(1) of Central Excise and Salt Act, 1944. It appears that tariff item 23(2) of the said Act does not specify any particular variety of cement but include all others, in absence of the identity of the variety of cement it will not be possible to comment on the material covered under T.I. 23(2) on the basis of the result of test carried out." 5.On the basis of this report, the High Court dismissed the writ application and gave the appellant liberty to challenge the directive 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 prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l' and 'Ashmoh' as held by the Collector - though described as a cement substitute. When the substitute is so much like the real think, it is difficult not to hold it as the same". 9.Before dealing with the submissions of the parties, it may be noted at this stage that in 1985, the First Schedule to the 1944 Act was repealed and re-enacted with some changes, as the Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as '1985 Act'). Cement has now been classified under Chapter 25 of the Schedule to the 1985 Act along with 'Salt; Sulphur; Clay and Stone; Plastering Materials: and Lime'. "The specific tariff entry relating to cement is 25.02 which reads : Heading No. Sub-Heading Description of goods Rate of Duty (1) (2) (3) (4) 25.02 2502.10 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% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Therefore for the period after the 1985 came into force, a distinction has been statutorily maintained, between cement, the different varieties and 'other' cements which have been classified under T.I. 2502.02 and lympo which has been classified under T.I. 25.05. The only question which remains is whether for the period 1982 to 1985 the lympo manufactured by the appellant could be classifiable under the T.I. 23(2) of the Schedule to the 1944 Act. 15.In our view, the Tribunal and the Collector have incorrectly interpreted the provisions of Tariff Item 23 of the First Schedule to the 1944 Act. The Tariff heading of the entry is 'Cement'. Therefore when T.I. 25(2) speaks of "all others" it means "all other kinds or varieties of cement". It is axiomatic that if the product is not cement but can be used for some purposes like cement, such product is not cement. The test as enunciated by the Tribunal for determination of the question of classification is no doubt how the product is known to the trade. The appellant has produced evidence 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 substi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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