Lokeshwar Singh Panta, J. - (1.) THIS statutory appeal is filed by M/s Indcon Structurals (P) Limited under Section 35L(b) of the Central Excise Act, 1944 (hereinafter referred to as "the Act") against the Final Order No. 1557/2000 dated 14th November, 2000 of the Customs, Excise and Gold (Control) Appellate Tribunal (for short "the CEGAT"), Chennai, in appeal No. E/1554/94-D-MD, setting aside the Order dated 16th May, 1994 recorded by the Collector of Central Excise (Appeals), Madras.
(2.) THE appellant-company is engaged in manufacture of flooring cement tiles using cement, sand, blue metal and gravel along with pigment. THEse are in the form of tiles used for constructing the floor itself or the wall, as the case may be. THE appellant-company filed classification list claiming the benefit of Notification No. 59/90-CE on the ground that the cement tiles in question are not floor coverings in rolls or in the form of tiles as per the description against serial no. 4 of sub-heading 6807.00 of the Table annexed with the Notification. THE Superintendent of Central Excise, Range- IXA, Madras, IX Division, issued a show-cause notice dated 6th November, 1992 to the appellant-company (hereinafter referred to as the "assessee-company") directing it to pay the excise duty on the cement tiles as the said goods are not eligible to avail the benefit of the Exemption Notification No.59/90-CE. THE assessee-company in its reply submitted that cement tiles manufactured by them are used to construct the floor itself and it is not floor coverings in terms of the description of the goods under sub-heading 6807.00. THE Assistant Collector of Central Excise, Madras, IX Division-the adjudicating authority, on careful examination of the records and the submissions made before it by both the parties and after taking into consideration the Section Notes/Chapter Notes of Chapters 39, 57, 59 and 68, felt it necessary to conduct an on-the-spot study since the issue for adjudication was in regard to the product classification. THE adjudicating authority accordingly visited the factory premises of the assessee-company and studied the manufacturing process of cement tiles. Finally, the adjudicating authority came to the conclusion that cement tiles manufactured by the assessee-company are covered undersub-head- ing 6807.00 as such the benefit of exemption Notification No. 59/90 dated 20th March, 1994 is available to the company. The Revenue preferred an appeal against the said order of the adjudicating authority before the Collector (Appeals). The First Appellate Authority confirmed the order of the adjudicating authority holding that the cement tiles manufactured by the asses- see-company are not floor coverings and the benefit of the Notification has been rightly extended to the Company. Being aggrieved against the order of the appellate authority, the Revenue filed an appeal before the CEGAT. The Member (Technical) of the CEGAT has found no infirmity or perversity in the said order and dismissed the appeal of the Revenue, but the second Member (Judicial) has recorded separate order differing with the order of Member (Technical) and set aside the order of the appellate authority.
(3.) THE matter came to be referred to the third Member for solving the difference of opinion between the Members of the Bench. THE third Member (Technical) agreed with the views expressed by Member (Judicial) and accordingly the appeal filed by the Revenue was accepted and the benefit of concession of the excise duty was denied to the assessee-company. Hence, the assessee-company has filed this appeal before this Court challenging the correctness and validity of the order of the CEGAT. We have heard the learned counsel for the parties on either side. Mr. V. Lakshmikumaran, the learned counsel for the assessee-company, submitted that the assessee-company is the manufacturer of the cement tiles, which are used as flooring in the form of floor itself and these are not floor coverings as projected by the Revenue.;