ORDER

1. The Respondent herein is the manufacturer of blended marble vinyl flooring which comes under the Chapter 68 of the Schedule of Central Excise Tariff, 1985 Act under sub-heading No. 6807. It was provisionally approved by the Assistant Commissioner Under Rule 19B of Central Excise Rules, 1944. However, thereafter two show cause notices were issued by the Assistant Commissioner. One show cause notice was for the period March, 1995 to July, 1995 and other for the period August, 1995 to November, 1995. In these show cause notices it was alleged that upon chemical test conducted on the product, the product is to be classified under Heading 3918.10. On this basis differential amounts of Excise duty in the sum of Rs. 1,54,31,679.55 and Rs. 13,48,149.00 respectively were demanded. The Respondent contested the aforesaid show cause notices and reiterated its position that the goods were rightly classified under Chapter 68 sub-heading 6807. The Order-in-Original passed by the Assistant Commissioner on 27-3-1996 did not accept the aforesaid contention of the Respondent and confirmed the demand raised in the show cause notices by classifying the product under sub-heading 3918.10.

2. The Respondent preferred appeal against that order before the Commissioner (Appeals) and succeeded in as much the appeal of the Respondent was allowed by the order dated 6-2-1997 and the order of the Assistant Commissioner was set aside.

3. Now, it was the turn of the Department to feel aggrieved and file the appeal before the CEGAT. The CEGAT has, however, vide impugned judgment dated 17-6-2003 [2003 (156) E.L.T. 92 (Tri.-Mum.)] affirmed the order of the Commissioner (Appeals) and dismissed the appeal of the Department. This is how the present appeal is preferred by the Department questioning the validity of the orders passed by the CEGAT.

4. We may mention at the outset that the Heading 6807 of the Central Excise tariff pertains to articles of stone, plaster, cement, asbestos, mica or similar material not elsewhere specified or included. On the other hand, Heading 3918.10 pertains to floor covering of plastics whether or not self-adhesive. Case of the Department is that report on the basis of these goods indicated them to contain polymers of vinyl chloride, resin, plaster, etc. and on the grounds that the goods are generally known as plastic tiles in the market and therefore, they are classifiable under Heading 3918.10.

5. A perusal of the order of the Assistant Commissioner which was extensively referred to by Mr. Sanghi, learned Senior Counsel appearing for the Department, would show that the Assistant Commissioner though took note of the judgment in the case of Bhor Industries Ltd. v. CCE 1980 (6) E.L.T. 752, he was of the opinion that the "predominance physically of materials" test laid down therein would not be applicable any more in view of the change in the tariff rules. To this extent Assistant Commissioner was right and even CEGAT has accepted this position. However, thereafter, as the reading of the order suggests, the Assistant Commissioner noted that the floor tiles manufactured by the Respondent consist of a thoroughly branded composition of thermo plastic binder asbestos fiber and filter & pigments. The order of the Assistant Commissioner also shows that in the test conducted by the Department the percentage of plastic (PVC) which was found was as low as 13.3% while the content of limestone was as high as 84.9%. It has also come on record that the plastic was primarily used as a binder. Even after noticing these facts, the only consideration which weighed with the Assistant Commissioner was that the main characteristics of the material was plastic. In our view it is here where the Assistant Commissioner fell in error, which error is rightly corrected by the Commissioner (Appeals).

6. The Commissioner (Appeals) noted the relevant facts and corrected the error committed by the Assistant Commissioner which is apparent from following portion of th