THE COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS CALICUT COMMISSIONERATE Vs. KERALA CHEMICALS AND PROTEINS LTD.

JUDGEMENT

(1.) THIS appeal is filed by the revenue against Order -in -Original No. 18/2006 dated 29.8.2006.

(2.) THE relevant fact that arise for consideration are the Respondent -Assessee in this case was manufacturing Di -calcium Phosphate (Animal Feed Grade) (hereinafter referred to as finished goods) and clearing the same without paying any duty and classifying the same under Chapter Heading No. 23099090. Lower authorities were of the view that the Respondent -Assessee's finished goods would merit classification under Chapter Heading 28352500 attracting 16% Duty and Education Cess. Coming to such a conclusion, a show cause notice was issued for demand of Central Excise Duty and Education Cess along with proportion for imposition of penalty and demand of interest. Respondent -Assessee contested the show cause notice on various grounds before the Adjudicating Authority. The Adjudicating Authority after considering the written and oral submissions, vide impugned order dropped the proceedings initiated by the said show cause notice dated 6.3.2006. Aggrieved by such an order, the revenue is in appeal.

(3.) THE learned Sr. Counsel Shri Joseph Vellapally and Shri Thomas Vellapally, Counsel appeared on behalf of the Respondent -Assessee. The learned Sr. Counsel would draw our attention to the judgment of this Tribunal in the Assessee's own case prior to 1.3.2005. He would also draw our attention to the dismissal of the appeal filed by the revenue against such order. He would submit that when the matter reached to Hon'ble Supreme Court, it was against an Order -in -Original passed by the Adjudicating Authority on 23.4.1997. He would draw our attention to the said Order -in -Original and submit that the points raised by the learned SDR today were the same, which was raised and held against the Assessee for the classification of the said finished products under Chapter Heading 2835. The very same arguments have been negatived by the Hon'ble Supreme Court. He would also draw our attention to the Chapter Note of Chapter 23 prior to 1.3.2005 and post 1.3.2005 and submit that the said Chapter Heading Note has not undergone any change. He would also draw our attention to the HSN Note addressed by the learned SDR and submits that the HSN and the Central Excise Tariff, contemplates the classification of Di -calcium Phosphate if it is obtained by a specific manufacturing process. He would submit that it is an admitted fact that the manufacturing process of the Respondent -Assessee as was prior to 1.3.2005 and post 1.3.2005 is the same i.e., Di -calcium Phosphate' is obtained by crushing animal bone. He would draw our attention to the findings of the Adjudicating Authority on this point and submits that revenue has not challenged these factual findings.