ORDER
G.A. Brahma Deva, Member (J)
1. These appeals are filed by the appellants, M/s. Polar Marmo Agglomerates Limited, involving a common issue therefore they are clubbed together and have been taken for disposal by the order.
2. The point to be considered in this case is whether ‘Agglomerated Marble’ manufactured and cleared by appellants be classified under Chapter 25 as claimed by the assessee or under Chapter heading 6807.
3. The appellants are engaged in the manufacture of Polar Agglomerated Marbles. As can be seen from the records the manufacturing process undertaken by the appellants has been summarised as under :
(i) Lumps/chips of natural marble are mutilated to the required dimensions and sizes.
(ii) Certain additives, such as pigments (for colour), binders (cement or polyster resin) for binding and catalysts are mixed with the said lumps and chips.
(iii) This is poured into moulds and subjected to vacuum compaction process, this results in the formation of marble blocks.
(iv) The said marble blocks are then sawed and cut into slabs and tiles of required sizes and dimensions and prepared for marketing.
4. When these matters were posted for hearing on 1st March, 2000 it has been coming on board for several times. Matters have been adjourned on one ground and the other, yesterday on 1st March, 2000 Sh. Abhishek Jain appeared and requested for short adjournment on the ground that concerned Advocate was not keeping well.
5. He was intimated to be ready with the case and argue the matter in case the senior does not appear. Today also he repeated the same request. The adjournment request is rejected and we proceed to pass the order after particularly coming to know from the DR that issue involved in this case has already been considered and concluded by the Tribunal in the case of Collector of Central Excise, Vadodara v. Kedia Agglomerated Marbles Ltd. reported in 1995 (77) E.L.T. 710.
6. Shri Jain also submitted that Rajasthan High Court in the very appellants case has taken a different view in favour of the assessee as reported in 1994 (73) E.L.T. 536. We find that the view taken by the Rajasthan High Court is no longer good in view of the fact that order of Rajasthan High Court has been set aside and remanded to adjudicate authority for readjudication as reported in 1997 (96) E.L.T. 21. In that case, it was observed by the Hon’ble Supreme Court that High Court should not have interfered at Show Cause Notice stage and should not determine the question as the fact finding was left to the authority under the statute. In pursuance by the Supreme Court’s directions, orders were passed by the Assistant Commissioner. The Collector (Appeal) confirmed the same. The party has come in appeal to the Tribunal. Shri Jain, further submitted that it is a fact that subsequent decision of the Tribunal in the case of Golden Poly Marbles Ltd. v. Collector of Central Excise, Jaipur reported in 1999 (105) E.L.T. 337 (Trib.) has followed the decision of the Rajasthan High Court and classified the item under 25.04, that decision of the Tribunal is not applicable because of the fact that decision of the Rajasthan High Court itself has been set aside by the Supreme Court.
7. We have carefully considered the submissions made by both sides. We find that process of manufacture of Agglomerated Marbles is similar to the item manufactured by the party in the case of Kedia Agglomerated Marbles -1995 (77) E.L.T. 710. Considering the similar facts and circumstances a three members bench of the Tribunal has given a clear ruling that such items in question are classified under heading 68.07 and not under 2504.31. Para 6 of the said decision is relevant in this context and same is reproduced as under : –
“In order to determine the correct classification of the disputed ‘agglomerated marble blocks/tiles under Central Excise Tariff, we refer to the competing namely 25.04 and 67.08 which are reproduced below : –
________________________________________________________________________
Heading Sub-hea- Description of goods
No. ding No.
________________________________________________________________________
(1) (2) (3)
________________________________________________________________________
25.04 Marble
2504.10 In blocks
In slabs
2504.21 - In or in relation to the manufacture of
which any process is ordinarily carried
on with the aid of power and where the
electromotive force used exceeds ten
horse power.
2504.29 - Other
In tiles:
2504.31 - In or in relation to the manufacture of
which any process is ordinarily carried
on with the aid of power and where the
electromotive force used exceeds ten
horse power.
2504.39 - Other
2504.90 - Other
68.07 6807.00 - All other articles of stone, plaster,
cement,asbestos, mica or of similar
materials not elsewhere specified or
included.
________________________________________________________________________
It is seen that “agglomerated marble” unlike the common ‘marble’ is not a mineral product. Agglomerated marble slabs are made out of crushed marble mixed with cement resin and certain other additives, which after curing are cut into slabs. Slabs of agglomerated marble are polished and cut into tiles. Since Heading 25.04 covers “marble” which is a mineral product, in our view the classification of agglomerated marble which is manufactured out of marble cement, resin and other materials under the said heading has to be ruled out and as an article produced mainly out of crushed marble, which is a hard calcarious stone, it would be specifically covered by Heading 68.07 of the Central Excise Tariff. We find that Note 2 to Chapter 25 which was referred to by the learned Counsel for the respondents relates only to Heading Nos. 25.01, 25.03 and 25.05. Hence we do not find any infirmity in the findings that “agglomerated marble blocks/tiles” are classifiable under Heading 68.07 of the Central Excise Tariff.”
8. Since, this issue has already been considered and decided by the three members bench, holding that item in question is classifiable under heading 68.07, we do not find any infirmity in the impugned order.
9. Accordignly all these appeals are dismissed as such.
