TMI Blog2000 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... der has been confirmed by the Commissioner (Appeals) (appeal 3715/99) have answered these questions in the affirmative. 2.We have heard the submissions of the advocate for the appellant in both the appeals and Mr. K.M. Patwari and Mr. A Ashokan, departmental representatives, for the department. 3.The authorities, whose orders are impugned in these appeals, have extentively relied upon the Tribunal's decision in Bitumen Products India v. CC - 1989 (44) E.L.T. 504, holding that blown bitumen obtained from such unblown or "straight grade" bitumen, as it is described in this order, are different commodities, and that the one emerges from the other by a process which amounts to manufacture as defined in Section 2(f) of the Act. It is the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it widely used for road-making purposes, generally in the form of a binder for stone aggregates. For such purposes, resilence to resist deformation by heavy traffic is important, and obviously the bitumen must not become so sticky on a hotday. It should be noted that because of the hundreds of compounds it contains, a bitumen does not have a sharply defined melting-point, but merely becomes progressively softer and more fluid as the temperature is raised. The hardness, or otherwise, of a bitumen is therefore expressed in terms of a "softening-point test which measures the temperature at which the bitumen reaches a standard, but quite arbitrary, degree of fluidity. Actual hardness, at a given temperature, is determined by another criterion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaches a "standard but quite arbitrary, degree of fluidity", increases. Its ductility is also therefore reduced. Therefore, he says, it has satisfied the prime requirement for the product particularly suitable for impregnating roofing felts, which will neither crack in cold weather nor flow under hot sunlight. The air blowing of bitumen, does not change its reaction to cold weather. The increase in the softening point only increases the temperature at which it will run or drip. 6. It is difficult for us to agree that thus the sole change which is brought also increase in the softening point, results in the emergence of a product which is so completely different in its nomenclature, structure and uses that a manufacture has taken place. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 2713 is significant. 7.It appears to us that the rulings of the Board has not been properly explained to the Tribunal in this order. The Tribunal's order suggests that tariff advice dated 16-7-1982 of the department said that blown bitumen is not classifiable under item 11 of the tariff. The tariff advice in question, in fact, does not say that unblown or straight grade bitumen does not fall under item 11. In fact, it emphasises the view of the Chief Chemist, at the conference of Collectors that blown bitumen being an oxydized variety of straight bitumen and it would continue to be classifiable under item 11 of the tariff. That is to say both unblown and blown bitumen would be classifiable under item 11. The same view is in fact rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e apart from this, on these considerations it would also have to be held, following numerous decisions of the Supreme Court that the benefit of a trade notice, that the process does not amount to manufacture, must flow to the appellant [see : CCE v. Kores (India) Ltd. - 1997 (89) E.L.T. 441]. 11.It is also to be noted that in the show cause notice issued resulting in the confirmation of the demand in appeal 3715 itself is not maintainable. Although the notice demands duty for a period ending six months of the relevant date, it alleges intent to evade payment of duty by contravention of the rules, one of the factors specified in the proviso under Section 11A(1). By applying the ratio of the Supreme Court in CCE v. Oil Natural Gas Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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