2005 (10) TMI 395 - AT - Central Excise

Summary

Issues:
(i) Whether loading of three duty paid ingredients in BMD vehicles amounts to manufacture under CETA.
(ii) Whether the appellant is entitled to claim the benefit of Notification No. 182/87.
(iii) Whether the department can recover duty under Section 11D when the appellant claimed exemption but recovered excise duty.

Analysis:

Issue (i) - Manufacture under CETA:
The appellant argued that mere loading of duty paid ingredients in the BMD vehicle did not constitute manufacturing. They contended that the final product was created only at the mine site when the raw materials were mixed. The Tribunal agreed, citing precedent cases like Kalinga Paints & Chemicals Industries and Gulf Oil Corporation. They held that the ingredients retained their separate identities until mixed, thus not constituting manufacture under CETA.

Issue (ii) - Benefit of Notification No. 182/87:
The appellant claimed exemption under Notification No. 182/87 for explosives manufactured in the mine. The Board's clarification supported this claim, stating that the BMD vehicle was covered by the exemption. The Tribunal found that the mobile van was within the mining area during the final product's manufacturing, fulfilling the conditions of the notification. They also noted that a previous order extending the benefit of the exemption had attained finality, thus upholding the appellant's entitlement to the exemption.

Issue (iii) - Recovery of Duty under Section 11D:
The appellant argued that they were not liable to pay duty as they claimed exemption under Notification 182/87. They demonstrated that no excise duty amount was collected from the customer, as evidenced by correspondences and invoices. Relying on precedents like BPCL v. CCE and HPCL v. CCE, the Tribunal concluded that the provisions of Sections 11A and 11D did not apply in this case. As a result, they set aside the impugned order and allowed the appeal filed by the appellant.

In conclusion, the Tribunal ruled in favor of the appellant on all issues, emphasizing that the loading of ingredients in the BMD vehicle did not constitute manufacture, the appellant was entitled to the benefit of Notification No. 182/87, and no duty recovery was warranted under Section 11D due to the exemption claimed and the absence of excise duty collection from the customer.