Punjab Bone Mills vs Collector Of Central Excise, Chandigarh>1999(02)LCX0165

1999(02)LCX0165

IN THE CEGAT, COURT NO. III, NEW DELHI

S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)

PUNJAB BONE MILLS

Versus

COLLECTOR OF C. EX., CHANDIGARH

Order Nos. 133-134/99-C, dated 22-2-1999 in Appeal Nos. E/3406/92-C & 4126/92-C

Cases Quoted

Collector v. Punjab Bone Mills — 1988(06)LCX0044 Eq 1988 (038) ELT 0389 (Tribunal) — Referred [Para 3]

Collector v. Raymon Glue & Chemicals — 1997(10)LCX0162 Eq 1998 (102) ELT 0424 (Tribunal) — Relied on [Paras 3, 5]

Collector v. Raymon Glue & Chemicals — 1998(11)LCX0255 Eq 1999 (105) ELT A194 (S.C.) — Relied on [Para 3]

Advocated By : Shri Vinod Agarwal, Advocate, for the Appellant.

Shri M.P. Singh, JDR, for the Respondents.

[Order per : V.K. Agrawal, Member (T)]. - These are two appeals - one filed by the M/s. Punjab Bone Mills and the other filed by the Revenue - arising out of the same other.

2. The issue involved in the appeal is regarding classification of di-calcium phosphate (animal feed grade) and availability of Notification No. 442/86, dated 6-11-1986.

3. Shri Vinod Agarwal, ld. Counsel, submitted that they are making di-calcium phosphate (animal feed grade) which was classified by them under Heading 2302 of the Schedule to the Central Excise Tariff Act. However, the department classified the product under Heading 3103 of CETA against which they had gone in appeal to the Tribunal and the Appellate Tribunal vide Order Nos. 105 & 106/92-C, dated 23-3-1992 had held in their favour, holding the classification of the product under Heading 2302.00. In the meantime, they had filed the classification list under protest under Heading 3103 and claimed the benefit of Notification No. 442/86. The Assistant Collector in the Order-in-Original No. 7/AC/Val/90, dated 19-2-1991 denied them the benefit of the notification holding that the samples of their product did not conform to the IS specification No. 5470-1969. However, on appeal, the Collector (Appeal) in the impugned order observed that di-calcium phosphate has been considered as an animal feed as per CEGAT’s order reported in 1988(06)LCX0044 Eq 1988 (038) ELT 0389 (Tribunal). But for enjoying the exemption under Notification No. 442/86 it had to conform to IS specification. The Collector (Appeals), therefore, held that but for the classification di-calcium phosphate as an animal feed, in view of the CEGAT’s judgment, the appeal is otherwise rejected. The ld. Counsel submitted that they have filed the present appeal on the ground that the Collector (Appeals) has not recorded his findings clearly with regard to the classification of di-calcium phosphate (feed grade). Besides relying upon the Tribunal’s judgment in their own case, referred to above, he also relied upon the decision in the case of C.C.E. v. Raymon Glue & Chemicals reported in 1998 (102) ELT 424 in which di-calcium phosphate (animal feed grade) was classified under Heading 2302 of the CETA. He also mentioned that the Civil Appeal filed by the department has been dismissed by the Supreme Court as reported in 1998(11)LCX0255 Eq 1999 (105) ELT A194.

4. Countering the arguments, Shri M.P. Singh, ld. D.R. submitted that the show cause notice was issued to the assessee only for denying the benefit of Notification 442/86 and the question of classification was not in dispute at all and, therefore, the finding of the Collector (Appeals) on the issue of classification is beyond the scope of the show cause notice. He, further, submitted that as the di-calcium phosphate manufactured by the assessee was not found to conform to IS specification, the benefit of notification was rightly denied to them.

5. We have considered the submissions of both the sides. We find that the ld. Counsel appearing on behalf of the assessee has rightly pointed out that initially they had classified their product under Heading 2302 of the Central Excise Tariff and as the department did not agree with the same and the matter was pending before the Tribunal, they had filed the classification list classifying the product under Heading 3103 under protest. In view of these facts, it cannot be said that the assessee had not claimed the classification of the product under Heading 2302. We also observe from the impugned order that the Collector (Appeals) has clearly mentioned that the appellants in the grounds of appeal have stated that the adjudicating authority had given no reasons for not accepting their contention that di-calcium phosphate was classifiable under Heading 23.02 and not under sub-heading 31.03 as contended by the department. Further, the Tribunal also in their own case has classified their product under Heading 23.02. Finally, the dispute about the classification of di-calcium phosphate (animal feed grade) has been settled by the Supreme Court by dismissing the appeal filed by the department against the Tribunal’s decision in the case of C.C.E. v. Raymon Glue & Chemicals reported in 1998 (102) ELT 424. In view of these facts and following the ratio of the Supreme Court decision, we hold that di-calcium phosphate (animal feed grade) is classifiable under Heading 23.02 of the Schedule to the Central Excise Tariff Act. The appeal filed by the assessee is allowed and the appeal filed by the department is rejected.

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Equivalent 1999 (107) ELT 372 (Tribunal)