Per V.K. Agrawal : The common issue involved in all these appeals, arising out of different orders, is whether the product in question is "Iron Ore" or "Iron Ore Concentrate" chargeable to Central Excise duty under Heading 26.01 of the Schedule to the Central Excise Tariff Act.

2.1 The learned Departmental Representative submitted that the Respondents are mining iron ore from mines and subjecting the same to crushing, grinding, screening and washing with an aim to concentrate the ores; that the Commissioner Appeals while allowing the appeals, has relied upon Order-in-Appeal No. 1/BBSR/98 dated 6.5.98 in the case of M/s. Essel Mining & Industries Ltd.; that the processes adopted by the Respondents are substantially different than those obtaining in the case of M/s. Essel Mining & Industries Ltd.; that Essel Mining, after mining the Ore only crush and screen the Ore whereby only the size of the iron lumps gets reduced and iron contents do not alter at any time whereas in the case of the Respondents their mining activity is done by fully mechanized system; that they are mining iron ores from mines and then ores are subjected to process of crushing, grinding and screening and washing with a view to remove foreign materials and to concentrate such ores; that the Respondents resorts to washing with an aim to concentrate the ores; that the purpose of washing is to increase the flowability/fluidity of iron ore after it has been mined as mined ore has very little flowability; that at each stage of washing water is added to improve the flowability of material by removing the sticky particles; that the processes undertaken by them definitely involve removal of parts of foreign material from the ores and increase the "Fe" content (i.e. iron content); that goods obtained by such process would qualify as concentrate as defined in the Explanatory Notes of HSN which reads as under:

"For the purpose of Heading 26.01 to 26.17, the term "concentrates" applies to ores which have had part or all of the foreign matters removed by special treatments, either because such foreign matter might hamper subsequent metallurgical operation or with a view to economic transport.

Processes to which products of Heading 26.01 to 26.17 may have been submitted include physical, physicochemical or chemical operations, provided they are normal to the preparation of the ores for the extraction of metals. With the exception of changes resulting from calcinations, roasting or firing (with or without agglomeration), such operations must not alter the chemical composition of the basic compound which furnishes the desired metal.

The physical or physico - chemical operations include crushing, grinding, magnetic separation, gravimetric separation, flotation, screening, grading agglomeration of powders (eg. by sintering or pelleting) into grains, balls or briquettes (whether or not with the addition of small quantities of binders), drying calcinations, roasting to oxide, reduce or magnetise the ore, etc. (but not roasting for the purpose of sulphating chloridating, etc.)."

2.2 The learned Departmental Representative, further submitted that from these Explanatory Notes, it is clear that any ore which after being subjected to physical or physico chemical process viz., crushing, screening etc., has had part or whole of its extraneous, foreign matter removed, would be termed as "concentrate"; that thus the product obtained after the processes carried out by the Respondents is "iron ore concentrate" only and not iron ore.

3.1 We also heard Shri S.K. Bagaria, learned Advocate, and Shri Partha Banerjee, learned Advocate, for the Respondents. Shri Bagaria, learned Advocate submitted that Respondents extract iron ore from mines at different places which is used as iron ore at the various steel plants; that at the mines, the following mining activities are undertaken by them - -

(a) Iron Ore is excavated from the mines in the form of blasted mass/rocks.

(b) Blasted mass/rocks are c