TaxTMI 
TaxTMI 
2014 (7) TMI 313
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....c Sector Undertaking, engaged in the manufacture of excisable goods falling under Chapters 26 & 27 of CETA, 1985. The dispute relates to levy of duty on the products, viz.Ileminite, Sillimenite, Rutile, Zircon and Garnet falling under Chapter Heading Nos.26140020, 26179000, 26140031, 26151000 & 26179000 respectively of CETA, 1985, manufactured/processed in their Mineral Separation Plant (MSP), from beach sand. It is his submission that this issue has already been settled in their favour by the Tribunal vide Order No.A-1032/Kol/2001 dated 27.09.2001 reported as Indian Rare Earths Ltd. Vs. CCE, Bhubeneswar-I : 2002 (139) ELT 352(Tri-Kolkata). The Department, however, has issued the demand notice, subsequent to insertion of Chapter Note 4 to C....
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....has been carried out from the inception of their Unit. He has stated that the sand collected from the sea beach, is not subjected to any special process or processes to bring about any physical or chemical/structural change in the ores. Therefore, precisely, what they recover from the sea beach sand, are only 'ores', not 'concentrates of ores'. He has submitted that the principle of law laid down by the Tribunal in their own case, still holds good in spite of insertion of Chapter Note 4 to Chapter 26 of CETA, 1985. 3.1 It is his submission that reliance was placed on the test report of the Regional Research Laboratory, Trivandrum, wherein it has been stated that the Lleminite, Rutile and Monazite etc. fall under the category of 'ores'. H....
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.....). The Ld. Adv. has further submitted that the Applicant have huge accumulated loss as on date and direction for pre-deposit of the dues confirmed would result in undue financial hardship. 4. Per contra, the ld. Spl. Counsel Shri S.C.Jana appearing for the Revenue has submitted that the terms 'ores' &'concentrates' have not been defied under the Central Excise Tariff Act and applying their meaning as laid down under HSN Explanatory Note, it is clear that the 'concentrates' mentioned in Chapter 26 of CETA, 1985 refer to products, which emerge during the process of removal of impurities so as to render the ores in lumps (or slurry) as they are mined to a stage capable of being used for further metallurgical process. It does not envisage a....
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....ed from 01.03.2011. The stand of the Applicant on the other hand that the 'ore' after various processes remained as 'ore' only and cannot be called as 'concentrate', hence no excisable. The ld. Advocate assailed the impugned order on the ground that the issue of levy of excise duty on the aforesaid products extracted from 'ores' by various physical processes has been settled in their own case by the Tribunal 2002 (139) ELT 352 (Tri.-Kolkata). Alternatively, it is submitted that since their processing plant situated within the 'mining area', therefore, the Applicant are eligible to exemption under Notification No.63/95-CE dated 16.03.95. 5.1 The dispute relates to the period after 01.03.2011, on insertion of the Chapter Note 4 to Chapter ....
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....d Chapter Note 4. 5.4 On a simple reading of the decision of this Tribunal, in the Applicant's own case, and other case laws on the subject, prima-facie, we find that even though it has been delivered prior to insertion of Chapter Note 4 to Chapter 26 of CETA,1985, but its findings and reasoning on other aspects, like the marketability of resultant product, its composition, etc. which led to the conclusion that the resultant product is not excisable, requires a thorough analysis to arrive at a conclusion on its applicability after the insertion of Chapter note 4 to Chapter 26 from 01.03.2011. Also, prima facie, we find that there are four different Laboratories report, wherein, it has been opined that the aforesaid products manufactured/....