CCE, AHMEDABAD Vs. ABHINISHA INTERMEDIATES (P) LTD.

JUDGEMENT

(1.) This is the department's appeal against the above captioned order dated 5.12.1994 praying for setting aside the same and to restore the order -in -original of the Assistant Collector.

(2.) THE facts of the case in brief are that the respondent manufactures nitrobenzene and para toluene sulphonic acid falling under chapter heading 2904.00 to the schedule of the Tariff and avails Modvat credit. Sulphuric acid is used for the manufacture of final product. In the process of manufacture by -product known as spent acid containing low concentration of sulphuric (acid) is obtained. Six show cause notices for the period from 1.9.1990 to 31.3.1993 were issued for the recovery of the Modvat credit wrongly taken on quantity of sulphuric acid used in the manufacture of spent acid, and the Assistant Collector has confirmed the demand on 28.6.1993 in the order -in -original. On the appeal by the party it was set aside and hence this appeal. The grounds urged in this regard is regarding the classification of the product spent acid that classifying it under heading 38.23 under the Tariff is not correct. In view of the Board's instruction dated 18.5.1992 it is classifiable under heading 28.07. The CEGAT should have considered that when separately defined chemicals are covered under chapter 28 or 29 it cannot be classified under chapter 38, in view of chapter note (1) and (2) of chapter 28. It is held that the spent acid is actually sulphuric acid in diluted form in the concentration between 51% to 60%, but the chapter heading 28.07 does not mention any concentration and so sulphuric acid of any concentration has to be classified under the chapter heading 28.07. In view of the above fact the impugned order has to be set aside and the order of the Assistant Collector has to be restored.