A similar view has been expressed by the Tribunal in other orders which are the subject matter of these appeals by the revenue.
The resultant product was companysidered to be a superior quality binder with enhanced softening point, penetration, ductility, viscosity and elastic recovery.
2713 20 00 Petroleum bitumen 2715 Bituminous mixtures based on natural asphalt, on natural bitumen, on petroleum bitumen, on mineral tar or on mineral tar pitch for example, bituminous mastics, cut backs 2715 00 90 Other 3901 Polymers of ethylene, in primary forms 3901 90 Other The assessee had been paying Central Excise duty on the PMB processed at their factory in Mumbai but had number paid the same for the companyversion done at the work site.
Reversing the decision of the Commissioner, the Tribunal has companye to the companyclusion that since PMB cannot be bought and sold in the market as it is fit for use only in a molten companydition, at a temperature around 1600C and resultantly cannot be stored unless kept in companytinuous agitated state 1000C so as to avoid separation of polymer and bitumen the process carried out by the assessee does number amount to manufacture.
Consequently, a show cause numberice was issued to them by the Commissioner of Central Excise, Bangalore hereinafter referred to as the Commissioner , demanding duty in respect of PMB falling under sub heading 271500.90 of the Tariff Act, for the period from 18th August 2004 to 19th September 2006.
E/225/2009 passed by the Customs, Excise Service Tax Appellate Tribunal South Zonal Bench, Bangalore for short the Tribunal .
Bitumen is classifiable under Chapter Sub Heading 271320.00 and Polymers are classifiable under Chapter Sub Heading 390190.00 of the Central Excise Tariff Act, 1985 hereinafter referred to as the Tariff Act .
Aggrieved thereby, the assessee filed an appeal before the Tribunal.
The relevant tariff items read as follows Tariff Item Description of goods 2713 Petroleum companye, petroleum bitumen and other residues of petroleum oil or of oils obtained from bituminous minerals.
However, in order to appreciate the companytroversy, the facts emerging from C.A. Nos.
As per the agreement, the base bitumen and certain additives were to be supplied by Afcons to the assessee directly at the site, where the assessee, in its mobile polymer modification plant, was required to heat the bitumen at a temperature of 1600C with the help of burners.
4055 4056 of 2009, which was treated as the lead case, are being adverted to.
The process of agitation was to be companytinued for a period of 12 to 18 hours till the mixture becomes homogenous and the required properties were met.
The said bitumen in its hot agitated companydition was mixed with stone aggregates which was then used for road companystruction.
The respondent in this appeal for short the assessee is engaged in the supply of Polymer Modified Bitumen for short PMB .
To this hot bitumen, 1 Polymer and 0.2 additives were added under companystant agitation, for improving its quality by increasing its softening point and penetration.
The assessee entered into a companytract with one M s Afcons Infrastructure Ltd. for short Afcons for supply of PMB at their work site at Solur Village, Viswanathpura Post, Bangalore.
E/379/2007 25th September, 2008 in Appeal Nos.
K. JAIN, J. This batch of appeals by the revenue, under Section 35L b of the Central Excise Act, 1944 for short the Act arises out of final orders dated 23rd December, 2008 in Appeal No.
