M/S. A. INFRASTRUCTURE LTD. Vs. CCE, JAIPUR

JUDGEMENT

(1.) APPEAL E/2009/2000 -D is at the instance of the assessee. Order under challenge in that appeal is Order -in -Original No.9/CE/JPD/2000 dated 9.3.2000 passed by the Commissioner of Central Excise, Jaipur. As per that order he confirmed a demand of Rs.16,15,885 under section 11A of the Central Excise Act and also imposed a penalty of Rs.5,00,000 invoking the provisions contained in Rule 173Q of the Central Excise Rules, 1944.

(2.) SHOW cause notice was issued demanding central excise duty of Rs.20,19,856. As against this amount, Commissioner confirmed the demand of Rs.16,15,885 only. Challenging the action of the Commissioner in confirming demand for lesser amount, the Revenue has come up by filing appeal E/373/2001 -D. Commissioner confirmed the demand of duty to a lesser amount following the decision rendered by this Tribunal in Srichakra Tyres Ltd. Vs. Collector of Central Excise, Madras : 1999 (108) ELT 361. Decision of this Tribunal in Sricharkra Tyres Ltd. was rendered by a Larger Bench. e are bound by that decision. The principle stated by this Tribunal in that Larger Bench decision was correctly followed by the commissioner. Therefore, we do not find any merit in the appeal filed by the Revenue. Accordingly, we dismiss appeal E/373/2001 -D.

(3.) NOTIFICATION No.38/93 gave exemption to all goods falling under Chapter 68 of the Schedule to the Central Excise Tariff Act, 1985, in which not less than 25% by weight of fly ash or phospho -gypsum or both had been used. This complete exemption from duty is available to goods falling under Chapter 68 provided fly ash weighing 25% of the finished product is used in its manufacture. A question that may arise is at what stage of the finished product the percentage of fly ash is to be assessed. Goods falling under Chapter 68 should be goods which are at the stage of clearance from the factory. At the stage of clearance of these pipes which contained water are not being cleared form the factory. So, the water content which went in for setting the ash with cement is not be taken into consideration for finding out the percentage of the fly ash content.