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Who is a ‘Manufacturer’ of excisable goods
This article is based on a recent court judgment, which helps traders involved in Crumbled Rubber Modified Bitumen and Polymer Modified Bitumen CRMB and PMB in terms of Central excise Act, India.
The contents of this court judgment clarifies the following:
The central excise benefit under Crumbled Rubber Modified Bitumen and Polymer Modified Bitumen.
What is CRMB and PMB in connection with central excise department.
The term ‘manufacturer’ under CRMB and PMB Crumbled Rubber Modified Bitumen and Polymer Modified Bitumen as per section 2(f) of Central excise Act.
The difference between CRMB and PMB. Crumbled Rubber Modified Bitumen and Polymer Modified Bitumen.
How Crumbled Rubber Modified Bitumen and Polymer Modified Bitumen PMB and CRMB works.
Uses of Polymer Modified Bitumen and Crumbled Rubber Modified Bitumen - PMB and CRMB
Are PMB and CRMB different from bitumen.
Difference between Bitumen, PMB and CRMB
Manufacturing process of PMB and CRMB Polymer Modified Bitumen and Crumbled Rubber Modified Bitumen .
Does Mixing of polymers and additives to base bitumen result a Manufacturing process
The cutting and slitting of thermal paper is deemed to be “manufacture”. slitting and cutting of toilet tissue paper on aluminum foil has not been treated as a “manufacture” Why.
Similar posts:
Please read the following court judgment to clarify the above:
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4055-4056 OF 2009
COMMISSIONER OF CENTRAL EXCISE,
BANGALORE-II
— APPELLANT
VERSUS
M/S OSNAR CHEMICAL PVT. LTD. — RESPONDENT
WITH
CIVIL APPEAL NO. 5633 OF 2009
AND
CIVIL APPEAL NO. 7142 OF 2010
JUDGMENT
D.K. JAIN, J.:
1. This batch of appeals by the revenue, under Section 35L(b) of
the Central Excise Act, 1944 (for short “the Act”) arises out of
final orders dated 23rd December, 2008 in Appeal No.
E/379/2007; 25th September, 2008 in Appeal Nos. Excise/522 &
523/2007 and 28th October, 2009 in Appeal No. E/225/2009
1passed by the Customs, Excise & Service Tax Appellate
Tribunal South Zonal Bench, Bangalore (for short “the
Tribunal”). By the impugned orders in cross-appeals by the
revenue and the assessee, the Tribunal has held that the
mechanical mixing of polymer with heated bitumen does not
amount to manufacture of a new commercially identifiable
product and therefore, is not eligible to Excise duty under the
Act.
2. Since these three appeals involve a common question of law,
these are being disposed of by this common judgment.
However, in order to appreciate the controversy, the facts
emerging from C.A. Nos. 4055-4056 of 2009, which was treated
as the lead case, are being adverted to.
The respondent in this appeal (for short “the assessee”) is
engaged in the supply of Polymer Modified Bitumen (for short
“PMB”). We may note that in one of the appeals (C.A.
No.5633/2009), the assessee additionally supplies Crumbled
Rubber Modified Bitumen (for short “CRMB”), stated to be a
different kind of modifier. The assessee entered into a contract
with one M/s Afcons Infrastructure Ltd. (for short “Afcons”) for
2supply of PMB at their work site at Solur Village, Viswanathpura
Post, Bangalore. As per the agreement, the base bitumen and
certain additives were to be supplied by Afcons to the assessee
directly at the site, where the assessee, in its mobile polymer
modification plant, was required to heat the bitumen at a
temperature of 160°C with the help of burners. To this hot
bitumen, 1% Polymer and 0.2% additives were added under
constant agitation, for improving its quality by increasing its
softening point and penetration. The process of agitation was to
be continued for a period of 12 to 18 hours till the mixture
becomes homogenous and the required properties were met.
The said bitumen in its hot agitated condition was mixed with
stone aggregates which was then used for road construction. The
resultant product was considered to be a superior quality binder
with enhanced softening point, penetration, ductility, viscosity
and elastic recovery.
3. ‘Bitumen’ is classifiable under Chapter Sub Heading 271320.00
and ‘Polymers’ are classifiable under Chapter Sub Heading
390190.00 of the Central Excise Tariff Act, 1985 (hereinafter
referred to as “the Tariff Act”). The relevant tariff items read as
follows:
34. The assessee had been paying Central Excise duty on the PMB
processed at their factory in Mumbai but had not paid the same
for the conversion done at the work site. Consequently, a show
cause notice was issued to them by the Commissioner of
Central Excise, Bangalore (hereinafter referred to as “the
Commissioner”), demanding duty in respect of PMB falling
under sub-heading 271500.90 of the Tariff Act, for the period
from 18th August 2004 to 19th September 2006. The
Commissioner adjudicated upon the said show cause notice
4
“Tariff Item Description of goods
2713 Petroleum coke, petroleum
bitumen and other residues of
petroleum oil or of oils obtained
from bituminous minerals.
2713 20 00 Petroleum bitumen
2715 Bituminous mixtures based on
natural asphalt, on natural
bitumen, on petroleum bitumen, on
mineral tar or on mineral tar pitch
(for example, bituminous mastics,
cut backs)
2715 00 90 Other
3901 Polymers of ethylene, in primary
forms
3901 90 Other ” and vide Order-in-original, dated 23rd April 2007, held that the
aforesaid process carried out by the assessee amounted to
manufacture of PMB in terms of Section 2(f) of the Act,
irrespective of the fact whether such process was carried out
on their own account or on job work basis and therefore, was
dutiable. He accordingly, confirmed the demand indicated in
the show cause notice. Aggrieved thereby, the assessee filed
an appeal before the Tribunal. Reversing the decision of the
Commissioner, the Tribunal has come to the conclusion that
since PMB cannot be bought and sold in the market as it is fit
for use only in a molten condition, at a temperature around
160°C and resultantly cannot be stored unless kept in
continuous agitated state @ 100°C so as to avoid separation of
polymer and bitumen; the process carried out by the assessee
does not amount to manufacture. A similar view has been
expressed by the Tribunal in other orders which are the
subject matter of these appeals by the revenue.
5. Mr. Arijit Prasad, learned counsel appearing for the revenue,
vehemently argued that having regard to the nature of the
process involved, PMB and CRMB are different from bitumen.
According to the learned counsel, ordinary bitumen is heated
5upto a temperature of 200°C, in the Polymer modification plant;
to this heated mixture, polymer is added and samples are
taken; if the samples, are found to be satisfactory, additives are
added and the PMB is either stored or dispatched. It was
submitted that the end products, viz. PMB and CRMB are
different from bitumen, inasmuch as polymers and additives
are the raw materials consumed in the process of manufacture
of the said final products and are therefore, covered by the
definition of the term “manufacture” in Section 2(f) of the Act.
To buttress his submission that PMB and CRMB are exigible to
Excise duty, both falling under a specific entry, learned
counsel referred to the Tariff Act, whereunder, while bitumen
is classifiable under Chapter Sub heading 271320.00, and
polymer is classifiable under Chapter Sub Heading 390190.00,
the finished products, PMB and CRMB are classifiable under
Chapter Sub Heading 271500.90. In support of his submission
that PMB and CRMB are commercially known in the market for
being bought and sold and therefore, satisfy the test of
marketability which is one of the essential conditions for the
purpose of levy of Excise duty, learned counsel commended us
to the decisions of this Court in Medley Pharmaceuticals
6Limited Vs. Commissioner of Central Excise & Customs,
Daman1 and Nicholas Piramal India Ltd. Vs. Commnr. Of
Central Excise, Mumbai2
. It was also urged that Circular No.
88/1/87-CX.3, dated 16th June, 1987, issued by the Department
of Revenue, Ministry of Finance, clarifying that a slight
modification of the grade or quality of bitumen, brought about
by the process of air blowing to duty paid bitumen did not
amount to manufacture, was wrongly relied upon by the
Tribunal as it had subsequently been modified by Circular No.
88/1/88-CX.3, dated 1st July, 1988, wherein the said department
had clarified that duty would be chargeable on blown-grade
bitumen.
6. Per contra, learned counsel appearing on behalf of the
assessees, led by Mr. S.K. Bagaria, senior advocate, while
supporting the decision of the Tribunal, fervently submitted
that based on the documents, evidence and materials on
record, the Tribunal has found, as a fact, that the process of
mixing an insignificant dose of polymer with duty paid bitumen
only enhanced the quality of bitumen and did not amount to
manufacture and therefore, in the absence of any plea of
1
2011 (263) E.L.T. 641 (SC)
2
2010 (260) E.L.T. 338 (SC)
7perversity, the finding does not warrant any interference by
this Court. In support of the proposition, learned senior
counsel placed reliance on the decisions of this Court in
Commissioner of Central Excise, Bangalore Vs. Ducksole (I)
Ltd. & Ors.3
and Commissioner of Central Excise, Delhi-III
Vs. Uni Products India Ltd. & Ors.4
7. Learned senior counsel vehemently argued that the
mechanical process of adding polymer and additives to heated
bitumen to bring into existence the so-called new substance,
known as PMB, did not amount to ‘manufacture’ in terms of
Section 2(f) of the Act. It was explained that by the said
process, only the grade or quality of bitumen is improved by
raising its softening point and penetration, for improving the
quality of the road; but even with the improved quality,
bitumen remained bitumen with the same end use. It was the
say of the learned counsel that a mere improvement in the
quality did not amount to manufacture, as ‘manufacture’ takes
place only when there is a transformation of raw materials into
a new and different article, having a distinctive name,
character and use, which is not the case here as the end use of
3
(2005) 10 SCC 462
4
(2009) 9 SCC 295
8both the articles remained the same. In support of the
proposition, learned senior counsel commended us to a
plethora of decisions of this Court, including M/s.
Tungabhadra Industries Ltd. Vs. The Commercial Tax
Officer, Kurnool5
, Commissioner of Central Excise, Gujarat
Vs. Pan Pipes Resplendents Limited6
, Crane Betel Nut
Powder Works Vs. Commissioner of Customs & Central
Excise, Tirupathi & Anr.7 and Union of India & Ors. Vs. Delhi
Cloth & General Mills Co. Ltd. & Ors.8
.
8. It was contended that since the period involved in these
appeals is post substitution of clause (f) in Section 2 of the Act
by Act 5 of 1986, which gives an extended meaning to the
expression “manufacture” by including in terms of sub-clause
(ii) to clause (f), any process “which is specified in relation to
any goods in the Section or Chapter notes of the First Schedule
to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting
to manufacture”, the said provision would be applicable.
However, wherever the legislature intended to give an
extended or artificial meaning to the said expression in
5
1961 (2) SCR 14 : AIR 1961 SC 412
6
(2006) 1 SCC 777
7
(2007) 4 SCC 155
8
1977 (1) ELT (J199) (SC)
9relation to any goods, it has clearly specified it. According to
the learned counsel, since the addition of polymer or additives
to the bitumen has not been specified in the Section or Chapter
notes of the Tariff Schedule as amounting to manufacture, the
amended definition is of no avail to the revenue. In support of
the contention, heavy reliance was placed on the decisions of
this Court in Commissioner of Central Excise, New Delhi-I
Vs. S.R. Tissues Pvt. Ltd.9 and Shyam Oil Cake Ltd. Vs.
Collector of Central Excise, Jaipur10
9. Relying on the two afore-mentioned Circulars, F.No. 88/1/87-
CX.3, dated 16th June 1987 and F.No.88/1/88-CX.3, dated 1st
July 1988, issued by the Department of Revenue, Ministry of
Finance, clarifying that blown grade bitumen produced by
oxidation of straight grade bitumen is not liable to duty;
learned senior counsel submitted that the present case is on a
much better footing than the blown grade bitumen, inasmuch
as, unlike oxidation, where chemical change takes place, in the
mixing of polymer and bitumen, no chemical change in
bitumen takes place, and therefore, PMB cannot be subjected
to Excise duty as a new commercial commodity. Additionally,
9
2005 (186) E.L.T. 385 (SC)
10 2004 (174) E.L.T. 145 (SC)
10reliance was also placed on Circular No.623/14/2002-CX.,
dated 25th February, 2002, wherein the Central Board of Excise
and Customs has clarified that the process of preparation of
Hot Asphalt Mix used in making roads does not amount to
manufacture as contemplated under Section 2(f) of the Act.
10. It was argued that merely because bitumen (the basic material)
and PMB (the end material) are specified under two different
headings, it cannot be presumed that the process of obtaining
PMB automatically constituted manufacture, unless in fact there
has been a transformation of bitumen into a new and different
product or alternatively, the Section Notes or Chapter Notes
created a deeming fiction by providing an artificial or
extended meaning to the expression ‘manufacture’ in respect
of the goods in question. In support of the proposition, learned
counsel placed reliance on the decisions of this Court in S.R.
Tissues Pvt. Ltd (supra), Commissioner of Central Excise,
Chennai-II Vs. Tarpaulin International11
, Shyam Oil Cake
Ltd. (supra), Commissioner of Central Excise, Mumbai Vs.
Lalji Godhoo & Co.12
, Commissioner of Central Excise Vs.
11 2010 (256) E.L.T. 481 (SC)
12 2007 (216) E.L.T. 514 (SC)
11Indian Aluminium Co. Ltd.13 and Hindustan Zinc Ltd. Vs.
Commissioner of Central Excise, Jaipur14, wherein it was held
that merely because the raw materials and the finished product
fall under two different tariff entries, it cannot be presumed
that the process of obtaining the finished product from such
raw materials automatically constituted manufacture.
11. Learned counsel also strenuously urged that even if it is
assumed that the said process amounted to manufacture, still
PMB cannot be subjected to excise as it is not commercially
marketable. It was argued that for levy of Excise duty, the twin
conditions of ‘manufacture’ and ‘marketability’ have to be
satisfied cumulatively. In support of the proposition, reliance
was placed on the decisions of this Court in Hindustan Zinc
Ltd. (supra), Indian Aluminium Co. Ltd. (supra) and Lalji
Godhoo & Co. (supra). Learned counsel also contended that
the burden to prove that the process in question constitutes
manufacture and that the goods so manufactured are
marketable as new goods, known to the market, lies on the
revenue and the same has not been discharged in the present
case. To support the contention, reliance was placed on Lalji
13 (2006) 8 SCC 314
14 (2005) 2 SCC 662
12Godhoo & Co. (supra), Metlex (I) (P) Ltd. Vs. Commissioner
of Central Excise, New Delhi15; Hindustan Poles Corpn. Vs.
Commissioner of Central Excise, Calcutta16 and HPL
Chemicals Ltd. Vs. Commissioner of Central Excise,
Chandigarh17
12. Lastly, the learned counsel stressed that in the light of the
decisions of this Court in Commissioner of Central Excise &
Customs Vs. Tikatar Industries18
, Commissioner of Central
Excise, Navi Mumbai Vs. Amar Bitumen & Allied Products
Private Limited19 and Commissioner of Central Excise,
Mumbai Vs. Tikitar Industries20
, the issue raised by the
revenue in these appeals is no longer res-integra, and
therefore, all the appeals deserved to be dismissed.
13. Mr. Laxmi Kumaran, learned counsel appearing for the
assessee in Appeal No.7142 of 2010, while adopting the
arguments advanced by Mr. Bagaria, emphasised that apart
from the fact that in his case the assessee was mixing the
additives at the site and not in a factory, the percentage of
15 (2005) 1 SCC 271
16 (2006) 4 SCC 85
17 (2006) 5 SCC 208
18 2006 (202) E.L.T. 215 (S.C.)
19 2006 (202) E.L.T. 213 (S.C.)
20 2010 (253) E.L.T. 513 (S.C.)
13polymer or additives added to bitumen was inconsequential
for determination of the issue at hand, as the predominant test
was whether the treated bitumen underwent any change in its
characteristics so as to acquire a new commercial identity. In
support, learned counsel referred to McNicol & Anr. Vs.
Pinch21
, wherein Darling J., delivering the concurring majority
opinion observed that:
“You can only make one thing out of another. I
think the essence of making or of
manufacturing is that what is made shall be
different thing from that out of which it is
made.”
In other words, the counsel submitted that the same test namely,
whether the product that emerges is something different from the
goods with which it is made, was observed to be the determining
factor. If bitumen, after its processing with additives and
modifiers, remains bitumen; although it is known as PMB, then no
new product emerges. It was asserted that in the present case, the
revenue had failed to prove that with the addition of polymer or
additives, bitumen had undergone any change in its chemical
composition and commercial identity. According to the learned
counsel, if the treated bitumen is not kept at a particular
21 1906 (2) K.B. 352
14temperature, bitumen and polymer get separated and revert to
their original state, which shows that no chemical reaction takes
place when both the commodities are mixed.
14. Thus, the question which falls for consideration in all these
appeals is whether the addition and mixing of polymers and
additives to base bitumen results in the manufacture of a new
marketable commodity and as such exigible to Excise duty?
15. The expression ‘manufacture’ defined in Section 2(f) of the Act,
inter alia includes any process which is specified in relation to
any goods in the Section or Chapter Notes of First Schedule to
the Tariff Act. It is manifest that in order to bring a process in
relation to any goods within the ambit of Section 2(f) of the Act,
the same is required to be recognised by the legislature as
manufacture in relation to such goods in the Section notes or
Chapter notes of the First Schedule to the Tariff Act. Therefore,
in order to bring petroleum bitumen, falling under CSH
27132000, within the extended or deemed meaning of the
expression ‘manufacture’, so as to fall under CSH 271500900,
the process of its treatment with polymers or additives or with
any other compound is required to be recognised by the
15legislature as manufacture under the Chapter notes or Section
notes to Chapter 27.
16. Dealing with the aspect of extended or artificial meaning of the
expression ‘manufacture’ in Section 2(f) of the Act in Shyam
Oil Cake Ltd. (supra), this Court had held as under :-
“16. Thus, the amended definition enlarges the
scope of manufacture by roping in processes which
may or may not strictly amount to manufacture
provided those processes are specified in the
Section or Chapter notes of the Tariff Schedule as
amounting to manufacture. It is clear that the
Legislature realised that it was not possible to put in
an exhaustive list of various processes but that
some methodology was required for declaring that
a particular process amounted to manufacture. The
language of the amended Section 2(f) indicates that
what is required is not just specification of the
goods but a specification of the process and a
declaration that the same amounts to manufacture.
Of course, the specification must be in relation to
any goods.
XXX XXX XXX XXX
XXX XXX XXX XXX
24. In this case, neither in the Section Note nor in
the Chapter Note nor in the Tariff Item do we find
any indication that the process indicated is to
amount to manufacture. To start with the product
was edible vegetable oil. Even after the refining, it
remains edible vegetable oil. As actual
manufacture has not taken place, the deeming
provision cannot, be brought into play in the
16absence of it being specifically stated that the
process amounts to manufacture.”
17. Then again, in S.R. Tissues Pvt. Ltd. (supra), a question arose
whether slitting and cutting of toilet tissue paper on aluminium
foil amounted to manufacture under Section 2(f) of the Act.
Answering the question in the negative, this Court had
observed thus :-
“15…..In order to make Section 2(f) applicable, the
process of cutting/slitting is required to be
recognized by the legislature as a manufacture
under the chapter note or the section note to
Chapter 48. For example, the cutting and slitting of
thermal paper is deemed to be “manufacture”
under Note 13 to Chapter 48. Similarly, Note 3 to
Chapter 37 refers to cutting and slitting as
amounting to manufacture in the case of
photographic goods. However, slitting and cutting
of toilet tissue paper on aluminium foil has not been
treated as a manufacture by the legislature. In the
circumstance, Section 2(f) of the Act has no
application.”
18. In the present case, a plain reading of the Schedule to the Act
makes it clear that no such process or processes have been
specified in the Section notes or Chapter notes in respect of
petroleum bitumen falling under Tariff Item 27132000 or even
in respect of bituminous mixtures falling under Tariff Item
27150090 to indicate that the said process amounts to
17manufacture. Thus, it is evident that the said process of adding
polymers and additives to the heated bitumen to get a better
quality bitumen, viz. PMB or CRMB, cannot be given an
extended meaning under the expression manufacture in terms
of Section 2(f) (ii) of the Act.
19. We may now examine whether the process in question,
otherwise amounts to manufacture under the expansive Section
2(f) of the Act. It is trite to state that “manufacture” can be said
to have taken place only when there is transformation of raw
materials into a new and different article having a different
identity, characteristic and use. It is well settled that mere
improvement in quality does not amount to manufacture. It is
only when the change or a series of changes take the
commodity to a point where commercially it can no longer be
regarded as the original commodity but is instead recognized
as a new and distinct article that manufacture can be said to
have taken place. In this behalf the following observations by
the Constitution Bench of this Court in Tungabhadra
Industries (supra) are quite apposite :
“In our opinion, the learned Judges of the High
Court laid an undue emphasis on the addition by
18way of the absorption of the hydrogen atoms in
the process of hardening and on the consequent
inter-molecular changes in the oil. The addition of
the hydrogen atoms was effected in order to
saturate a portion of the oleic and linoleic
constituents of the oil and render the oil more
stable thus improving its quality and utility. But
neither mere absorption of other matter, nor intermolecular changes necessarily affect the identity
of a substance as ordinarily understood…………
The change here is both additive and intermolecular, but yet it could hardly be said that
rancid groundnut oil is not groundnut oil. It would
undoubtedly be very bad groundnut oil but still it
would be groundnut oil and if so it does not seem
to accord with logic that when the quality of the oil
is improved in that its resistance to the natural
processes of deterioration through oxidation is
increased, it should be held not to be oil.”
(Emphasis supplied by us)
20. In Delhi Cloth & General Mills Co. Ltd. (supra), yet another
Constitution Bench, exploring the concept of manufacture
echoed the following views :
“14……The word ‘manufacture’ used as a verb is
generally understood to mean as “bringing into
existence a new substance” and does not mean
merely “to produce some change in a substance”,
however minor in consequence the change may be.
This distinction is well brought about in a passage
thus quoted in Permanent Edition of Words and
Phrases, Vol. 26, from an American judgment. The
passage runs thus:-
“Manufacture implies a change, but every
change is not manufacture and yet every
change of an article is the result of
19treatment, labour and manipulation. But
something more is necessary and there
must be transformation; a new and different
article must emerge having a distinctive
name, character or use.”
(Emphasis supplied by us)
21. In S.R. Tissues Pvt. Ltd. (supra), the issue for consideration
was whether the process of unwinding, cutting and slitting to
sizes of jumbo rolls into toilet rolls, napkins and facial tissue
papers amounted to manufacture. While holding that the said
process did not amount to manufacture this Court inter-alia,
held as under :
“12…..However, the end-use of the tissue
paper in the jumbo rolls and the end-use of the
toilet rolls, the table napkins and the facial
tissues remains the same, namely, for
household or sanitary use. The predominant
test in such a case is whether the characteristics
of the tissue paper in the jumbo roll
enumerated above is different from the
characteristics of the tissue paper in the form of
table napkin, toilet roll and facial tissue. In the
present case, the Tribunal was right in holding
that the characteristics of the tissue paper in the
jumbo roll are not different from the
characteristics of the tissue paper, after slitting
and cutting, in the table napkins, in the toilet
rolls and in the facial tissues.”
(Emphasis supplied by us)
2022. In Deputy Commissioner Sales Tax (Law), Board of Revenue
(Taxes), Ernakulam Vs. Pio Food Packers22
, a three Judge
Bench of this Court, while deciding whether conversion of
pineapple fruit into pineapple slices for sale in sealed cans
amounted to manufacture, observed as follows:-
“4……Commonly, manufacture is the end
result of one or more processes through
which the original commodity is made to pass.
The nature and extent of processing may vary
from one case to another, and indeed there
may be several stages of processing and
perhaps a different kind of processing at each
stage. With each process suffered, the
original commodity experiences a change.
But it is only when the change, or a series of
changes, take the commodity to the point
where commercially it can no longer be
regarded as the original commodity but
instead is recognized as a new and distinct
article that a manufacture can be said to take
place. Where there is no essential difference
in identity between the original commodity
and the processed article it is not possible to
say that one commodity has been consumed
in the manufacture of another. Although it has
undergone a degree of processing, it must be
regarded as still retaining its original identity.
(Emphasis supplied by us)”
23. Having considered the matter on the touchstone of the
aforesaid legal position, we are of the view that the process of
mixing polymers and additives with bitumen does not amount
to manufacture. Both the lower authorities have found as a fact
22 1980 (6) E.L.T. 343 (SC)
21that the said process merely resulted in the improvement of
quality of bitumen. Bitumen remained bitumen. There was no
change in the characteristics or identity of bitumen and only its
grade or quality was improved. The said process did not result
in transformation of bitumen into a new product having a
different identity, characteristic and use. The end use also
remained the same, namely for mixing of aggregates for
constructing the roads.
24. We also find substance in the contention urged on behalf of the
assessee that the answer to the issue at hand stands concluded
by the dismissal of the Civil Appeals filed by the revenue
against the decision of the Tribunal in the case of Collector of
Central Excise, Vadodara Vs. Tikitar Industries23. In that case
the dispute was whether the process relating to improvement
of the quality of bitumen by raising its softenin
g point and
penetration amounted to manufacture of a new and different
commodity. The process involved in improving the quality of
bitumen was oxidation, which converted straight grade
bitumen into air blown bitumen. In revenue’s appeal the
Tribunal had inter-alia held as under :
23 2000 (118) E.L.T. 468 (Tri.)
22“19. The duty paid bitumen received by the
Assessee is boiled so that foreign substances
like sand and stone settle down; thereafter
the air is blown into the material for
improving the quality of the bitumen by
raising the softening point and penetration;
this makes the bitumen suitable for intended
application. It is seen from the process
undertaken by the Assessees that only the
quality of the product which has already
suffered duty is improved…...”
(Emphasis supplied by us)
As aforesaid, revenue’s appeal was dismissed by this Court vide
order dated 2nd August, 2006 in Tikatar Industries (supra).
25. We therefore, hold that PMB or CRMB cannot be treated as
bituminous mixtures falling under CSH 27150090 and shall
continue to be classified under CSH 27132000 pertaining to
tariff for petroleum bitumen.
26. In view of the opinion expressed above, we deem it
unnecessary to deal with the other grounds urged on behalf of
both the sides.
27. For the foregoing reasons, no ground is made out for our
interference with the impugned orders passed by the Tribunal
in all the appeals mentioned in paragraph 1 supra. The
23appeals, being bereft of any merit, are dismissed accordingly,
with no order as to costs.
.……………………………………
(D.K. JAIN, J.)
.…………………………………….
(ASOK KUMAR GANGULY, J.)
NEW DELHI;
JANUARY 13, 2012.
RS
24
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