BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner's case is that he is engaged in the business of production of agglomerated marble blocks and tiles since 1991. THEse blocks and tiles of Agglomerated marbles are made from Lumps/chips of naturally excavated marble. THE procedure employed in manufacturing the tiles in question is stated to be that marble chips are crushed mechanically in the Jaw crusher/impactor and crushed marble stones in the desired grits sizes are transported to the Mixer where with addition of calcium carbonate powders, polyester resin as binders and pigments for colouring, are mixed and a dough is formed and conveyed into a mould. Such mixture/dough is taken into a vibro-compaction press where under vacuum and pressure the blocks of agglomerated marbles are formed after being cured for slabbing on sang saw and slabs are polished in an automatically operated polishing line, cut into slabs and tiles of the required sizes. THEse agglomerated marble slabs and tiles contain the properties, characteristics and aesthetic visuals of natural marble as it comprises of 94% contests / weight of natural marble stones, balance 5-7% being binders, calcium carbonate and pigments. The assessee-petitioner has raised two fold contentions during the course of determination of Excise Duty payable by him on manufacture of tiles in question, firstly pointing out to the contents of the end product, the assessee has urged that the product in question should be classified under tariff item No. 25. 04 sub-heading 2504. 31. The tariff item No. 2504 is `marble' and sub-heading 2504. 31 refers to in or in relation to the manufacturing of which any process is ordinarily carried out on with the aid of power and where the electromotive force used exceeds 10 HP. However, the Revenues case was that the product in question is governed by the tariff item No. 68. 07 sub-heading 6807. 00, which reads as under:- " All other articles of stone, plaster, cement, asbestos, mica or of similar material not elsewhere specified or included. " Secondly, before the Assessing Authority the question was also raised that in case the product in question is classified under heading 68. 07 sub-heading 6807 then they should be classified as mosaic tiles and mosaic tiles are to be taxed at nil rate under notification No. 59/90 CE dt. 20. 03. 1990. The revenue did not agree with the contentions of the petitioner assessee on either count. It found that the product in question has to be classified as article of stone under tariff head 6807 sub heading 6807. 31 and not as a marble under Tariff item 25. 04. The contention with regard to the exemption as mosaic tiles was rejected on the ground that the product of the petitioner is agglomerated marble tiles and not mosaic tiles, because it is not sold as mosaic tiles in market but under trade names Vila Nova and also that it fell in class which was specifically excluded from the perview of the notification No. 59/90 CE by virtue of clause (1) of serial No. 4 of the table under the said notification and the correct rate of tariff payable under item No. 68. 07 is 15% advelorem which was also the rate prescribed under the said exemption notification.
(3.) THE order passed by the Assistant Collector, Central Excise dated 6. 2. 1995 has since been affirmed by the Commissioner (Appeals) vide his order dated 15. 3. 1996 and ultimately by the CEGAT vide its order dated 2. 03. 2000. The principal ground which has weighed with the Tribunal and lower authorities in not considering the claim of petitioner for classification as tariff item and exemption was the decision rendered by the Tribunal in the case of Collector of Central Excise, Vadodara vs. Kedia Agglomerated Marbles Ltd. (1 ). Before proceeding further, we may notice that initially when show cause notice was issued to the petitioner, it has filed D. B. Civil Writ Petition No. 631/2001 challenging the show cause notice. In the said writ petition, apart from raising doubt about the proposed classification, the assessee has claimed that the product in question does not come within the perview of manufacture at all and, therefore, not exigible to Excise Duty. This plea found favour with the Division Bench vide its judgment dated 19. 5. 1993 and it was held that the product sold by the petitioner under trade name Vila Nova is not exigible to Duty under the Act of 1944. However, the order was set aside by the Hon'ble Supreme Court on appeal by finding that the question decided by the High Court was a question of fact and requires to be determined by fact finding authority in the first instance. It may be noticed that in the show cause notice under challenge, the same question was there. The revenue has sought to classify the item under tariff head 68. 07. It was left to the Assessing Authorities to decide the question of fact and, thereafter, the matter has proceeded before the Assessing Authority as noticed above. ;