MEERA CHEMICO INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The issue involved in this Appeal, filed by M/s. Meera Cemico Industries, is whether the process of calcinations of raw pyrophyllite amounts to manufacture and whether the calcined pyrophyllite is classifiable under Heading 25.05 of the Schedule to the Central Excise Tariff Act as claimed by them or under Heading 38.16 as confirmed by the Commissioner (Appeals) in the impugned Order,

(2.) Shri V. Lakshmikumaran, learned Advocate, submitted that Pyro -phyllite is a naturally occurring hydrated aluminium silicate; that by the process of calcinations, the chemically combined water of pyrophyllite is only removed with a view to making it a volume stable material; that after removal of water it is a shrunk material; that the bonds between aluminium and silica are not changed to a new crystal line structure since in pyrophyllite no free aluminium and silica remains; that it remains in the form of Alumino - Silicate; that both raw pyrophyllite and calcined pyrophyllite serve the same purpose in a refractory formulation when used; that thus by the process of calcinations, raw pyrophyllite is merely converted into volume stable material and hence the process can not be called as "manufacture".

(3.) 3.1 The learned Counsel further submitted that Heading 25.05 of the Tariff applies to mineral substances, not elsewhere specified (including clay, earth colours, natural abrasive, sulphurs, slate and stone) whereas Heading 38.16 covers "Refractory cements, mortars, concretes and similar compositions, other than products of heading No. 38.01"; that as per Note 2 to Chapter 25, Heading 25.05 would cover only products which have been washed, crashed, ground, powdered etc., but not products that have been roasted, calcined or obtained by mixing; that despite the said Note, the Central Board of Excise and Customs vide Circular F. No. 114/18/86 -CX 3 dated 24 -3 -86 clarified that 'calcined magnesite' would fall under Heading 25.05; that Heading 25.05 was amended in 1990 -91 whereby 8 Sub -headings were added to the main Heading 25.05; that Sub -heading 25.05 which covered calcined pyro -phyllite read as under :