- (1.) THESE appeals are directed against Final Order No. A / 141-144 / WZB / 2005 / CI dated 17-2-2005 in Appeal No. E / 55-58/00 - MUM passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai (for short "the Tribunal") wherein and whereby the Tribunal while accepting the appeals filed by the respondent assessees, set aside the order passed by the Commissioner of Central Excise confirming the duty demand of Rs.93,98,607 against the assessee and imposing a penalty of Rs.40 lakhs in terms of R.173 - Q of the Central Excise Rules, 1944 (for short "the Rules") for the period from 1-4-1993 to 2-7-1996 and Rs.54,01,636 under S.11 - AC of the Act for the period from 28-9-1996 to 31-3-1998 and penalties of Rs.2 lakhs, Rs.1 lakh and Rs.50,000 on the Managing Director, Chief Executive and Authorised Signatory respectively of the assessee. The Commissioner confirmed the demand by classifying the product "Bitufelt Type III Grade I" under Chapter Heading 68.07 of the Schedule to the Central Excise and Tariff Act, 1985 (for short "the Tariff Act"), and rejecting the claim of the assessee for classification under Chapter Heading 59.09 read with Notifications Nos. 53/65 - CE and 92/94 - CE dated 20-3-1965 and 25-4-1994 respectively.
(2.) THE two points to be decided in the present appeals are: ( / ) whether the article under consideration is to be classified under Chapter Heading 68.07, as contended by the Revenue or under Chapter Heading 59.09, as contended by the assess; and (if) whether the process of making blown grade bitumen out of straight grade bitumen amounts to manufacture. Heard the learned counsel appearing for the Revenue. The respondent assessee is not represented before us in spite of service.
(3.) THE Tribunal relying upon an earlier decision of another Bench of the Tribunal in CCE v. Bitumen Products (India), 1999 (107) ELT 58 (CEGAT) held that "bituminised Hessian based felt" is covered under Chapter Heading 59.09 as contended by the assessee and not under 68.07 as contended by the Revenue. Admittedly, no appeal was filed by the Revenue against the earlier decision of the Tribunal in Bitumen Products (India), 1999 (107) ELT 58 (CEGAT) and the same has become final.;