2008(11)LCX0313

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI

S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J)

Stone Man Marble Indus.

Versus

Commissioner of Customs, Jaipur

Final Order Nos. C/600-606/2008(PB), dated 12-11-2008 in Appeal Nos. C/819-820/2005 and C/234-237 & 362/2006-CU(DB)

Cases Quoted -

Akbar Badruddin Jiwani v. Collector -1990(02)LCX0057 Eq 1990 (047) ELT 0161 (S.C.) - Noted [Para 4]

Commissioner v. Amit Marbles - Final Order No. C/35/2005, dated 1-10-2005 - Noted [Paras 5,6.3]

Ramdhan Mohanlal - Final order No. 392-393 - Referred [Para 5]

Advocated By -

Shri Hemant Bajaj, Appellant.
Shri Sunil Kumar, DR, for the Respondent.

[Order per : M. Veeraiyan, Member (T)]. -

Appeals Nos. C/819-820 of 2005 & C/362 of 2006 are by the parties against the orders of the Commissioner (Appeals), wherein the decisions of the lower authority in classifying the imported products under Heading No. 2515.20 has been upheld.

1.2 Appeals Nos. C/234 to 237 of 2006 are by the Department against the common order-in Appeal No. Order-in-Appeal No. 02-05(MPM)CUS/JPR-1/2006, dated 23-1-2006 by which the decision of the lower authority in classifying the imported product under Chapter Heading No. 2515.20 was reversed and the contention of the importers to classify them under Heading No. 2515.11 was upheld.

1.3 All the appeals are before the Tribunal for the second time having been remanded by Final Order Nos. 101-108/2002, dated 14-5-2002 [2002(05)LCX0155 Eq 2002 (143) ELT 0539 (Tri.)] in Appeal Nos. C/499-506 of 2002-C.

1.4 All these appeals involve a common issue and, therefore, are being dealt with by a common order.


2. Heard both sides.


3.1 The relevant facts, in brief, are as follows :-

The importers (in two cases the appellants and in other cases the respondents) imported certain items and they cleared the same as commercial marble and sought classification under Heading No. 2515.11. The Department sent samples to CRCL as well as to GSI. The reports of CRCL was in favour of the imports-ers. However, the report of the GSI was not specific in certain respects. The original authority in the first round of litigation decided the issue in favour of the Department and the Commissioner (Appeals) decided in favour of the importers. On appeal by the Department, the Tribunal by Order dated 14-5-2002 remanded the matter with the directions to the Adjudicating Authority to approach GSI again for specific report as to whether the impugned goods are marble or not and then, re-adjudicate the matter following the principles of natural justice.

3.2 In pursuance of the direction of the Tribunal, the Department has approached GSI and got the report dated 13-9-2002, which is generally in favour of the importers. Subsequent clarification dated 7-1-2003 and 7-4-2003 have been received in favour of the Department in respect of other four parties. The decision by the Commissioner (Appeals) in the second round of litigation, is in favour of parties in four cases and is in favour of the Department in other cases.


4. Ld. DR submits that in the light of the decision of the Hon'ble Supreme Court in the case of Akbar Badruddm Jiwani v. Collector of Customs reported in 1990(02)LCX0057 Eq 1990 (047) ELT 0161 (S.C.), the commercial parlance whether the goods can be considered as marble or not is not material. The chemical composition and petro-graphic reports, which indicate the state of material, whether they have undergone metamorphic and recrystalisation, would be relevant. The latest clarification obtained from the GSI clearly states that they are lime stones and, therefore, the classification under 2515.20 should be upheld. The cross-examination of the experts during the adjudication proceedings also confirm that the said products are lime stones.


5. Ld. Advocate appearing for M/s. Swati Marble Industries and Others submits that the original reports of CRCL is in favour of the importers.

He relies upon the decision of the Tribunal the Final Order Nos. 392-393/2008 in the case of Ramdhan Mohanlal & Co. Pvt. Ltd. in Customs Appeal No. 714 of 2005 and the decision in the case of CC v. Amit Marbles - Final Order No. C/35/2005, dated 1-10-2005, wherein it has been held that identical products imported are to be classified only under Heading No. 2515.11.


6.1 We have carefully considered the submissions from both the sides. The matter is before the Tribunal for the second time. The Department was given liberty to seek specific reports from GSI regarding the nature of the products imported. We find that three reports have been obtained. The relevant portion of the three reports are reproduced below :-

PETROGRAPHIC REPORT OF ROCK SAMPLES DATED 13-9-2002

"In response to your letters referred above, regarding the petro-graphic report of the samples sent by you in 1999, the following points are to be stated:-

1. The petrographic reports of the samples clearly state that these samples are of limestone of sedimentary origin. The minor/incipient re-crystallisation noticed in the groundmass of few samples can be attributed to the diagenetic changes during compaction, and does not indicate a metamorphic origin.

2. Determination of specific gravity is a separate test carried out on request and is not done as a part of petrographic study. Moreover the specific gravity of the rock does not form a conclusive factor in identification/classification of the rock.

3. Since the possible commercial use of the rocks was also desired (as mentioned in the purpose of test) in the test memos sent by you, it was stated in most of the cases that by virtue of sufficient hardness the rock can take good polish and can be used as commercial marble.

4. Although in commercial parlance, any carbonate rock sufficiently hard and capable of taking goods polish is termed marble, the study of petrographic characters in the thin section was carried out for the identification of the rock.

5. It can be concluded that on the basis of the petrographic parameters, all the samples submitted by you are of limestone having a sedimentary origin, which can be used commercially as marble."

PETROGRAPHIC REPORT (7-10-2003)

PETROGRAPHIC REPORT OF ROCK SAMPLES DATED 7-4-2003

"In response to the above reference, regarding the petrographic report of the samples, the following points are mentioned in order to clarify the results sent earlier.

Limestone is a very fine grained, dull looking comparatively soft, rock, while marble is coarser grained, hard rock capable of taking good polish on treatment (cutting and polishing), although both the rock types, when pure may be exactly similar in chemical composition. However, in commercial jargon any rock with some carbonate content and hardness, with an aesthetic look, and capable of taking good polish is called 'Marble For Example', the yellow limestone of Jaisalmer district and the green ser-pentinite (Calcium-magnesium silicate and carbonate) from the Rikhabdev area, Udaipur district, are sold in the market as yellow marble and green marble, respectively.

The samples under question sent in two lots (first in the year 2000 and second in 2002) are hard, bright, shining in hand specimen and show partial crystallinity under microscope. A further detailed study of the physical and petrographic characters show that all these samples except one (sample No. B/E 234) are geologically 'limestone', although they have a physical look of commercial marble and can be so used."

6.2 From the above reports, it is seen that the first report is in support of the claim of the importers and the contents of the first report are not contradicted in the subsequent reports given by way of clarification. The concluding report also confirms that the imported goods are useable as commercial marble.

6.3 Similar issue has been decided by the Tribunal in the case of M/s. Ramdhan Mohan Lal & Co. (Pvt.) Ltd. and M/s. Amit Marbles Pvt. Ltd. (supra) and the relevant portions of the orders is reproduced below :-

Ramdhan Mohan Lal & Co. (Pvt. (Ltd.)

"6. We have carefully considered the submissions by learned DR and also the written submissions filed on behalf of the appellant, The chemical composition of the lime stone and marble are the same and are not different. The marble is formed by the process of metamorphism of lime stone. The judgment relied upon by the learned DR. In the case of Akbar Budruddin Jiwani also holds that the marble is formed by metamorphism of the lime stone and the product should be subjected to microscopic examination to confirm whether the same is marble or not. The report of CRCL confirms that the imported goods satisfy the physical characteristics of marble. The appellant's claim for retesting has not been allowed. It is not a case whether the department sent the sample only to Geological Survey of India. Having sent the sample to CRCL and having received the report which is in conflict with the report of Geological Survey of India, the refusal to permit retesting and refusal of cross-examination are not justified. Further, the import has taken place in September, 1999. The clarification of the Board has been issued in 2002."

Amit Marbles Pvt. Ltd.

"5. We have carefully, considered the submissions. The Chapter heading 2515 reads as under :

To come under 2515.20 as claimed by the Department it should be established that the imported material first of all falls under the category of "Ecaussine and other calcareous monumental or building stone, alabaster". In the test reports of the Mines and Geology Department, the nature and qualities of the imported items have been variedly described as follows :

"Thus, on the basis of colour, texture the rock may be termed commercially can be used as marble".

"The rock takes good polish and commercially it can be used as marble."

"Thus, on the basis of the texture and structure, the rock may be termed as oolitic limestone".

"The rock may be termed as crystalline limestone/marble."


6. None of the reports specifically indicate that the imported goods can come under any of the categories mentioned under 2515.20. The reports have used the terms 'marble and limestone' to describe the imported goods. The report also confirms that the imported goods can take polish. In other words, the report does not preclude classification of the imported items as marble. It is not disputed that the goods imported are rough and not polished though capable of being polished and therefore, the decision of the Commissioner (Appeals) in accepting the claim of the respondent and upholding the classification under 2515.11 cannot be faulted with".


7. In the present case, as already noted, the report of CRCL was in favour of the importers. The Board's advice regarding referring the samples to GSI came to be issued in 2002 much after the import in these cases. The reports of the GSI are not specifically in favour of the Department. Even in the expert's opinion given by GSI, it has been submitted that these goods can be used as marble commercially. In the light of this, we are unable to deny the claim of the importers that the impugned goods should be treated as marble and classified under 2515.11. We have taken similar decision in the case of Ramdhan Mohan Lal & Co. (P) Ltd. cited supra.


8. Following the above, (a) we reject the appeals by the Department and (b) we allow the appeals of the importer with consequential relief.

(Order dictated & pronounced in open court on 12-11-2008)

Equivalent 2009 (240) ELT 0276 (Tri. - Del.)