2009 (3) TMI 906 - AT - Central Excise

Summary

Issues Involved:
1. Whether the benefit of Notification No. 293/88-C.E., dated 9-12-1988, Notification No. 8/97-C.E., dated 1-3-1997, and Notification No. 23/2003-C.E., dated 31-3-2003 is admissible to the assessee.
2. Whether the imported items used by the assessee in the manufacture of hydrogen peroxide are to be considered as raw materials or consumables.

Summary:

Issue 1: Admissibility of Notification Benefits
The assessee, a 100% export-oriented unit (EOU) engaged in the manufacture of hydrogen peroxide, claimed benefits u/s 3 of the Central Excise Act, 1944, under Notification No. 293/88-C.E., dated 9-12-1988, Notification No. 8/97-C.E., dated 1-3-1997, and Notification No. 23/2003-C.E., dated 31-3-2003. The Collector of Central Excise, Hyderabad, in Order-in-Original No. 30/90 dated 30-8-1990, held that the imported items were consumables, not raw materials, and thus the assessee was eligible for the benefits. This order was not appealed against and attained finality. Subsequent show cause notices were issued for the period from April 1997 to September 1998, and March 1999 to May 2004, demanding differential duty. The Commissioner (Appeals) upheld the demands, but the Tribunal reversed these orders, leading to an appeal before the Supreme Court, which remanded the matter for fresh consideration.

Issue 2: Classification of Imported Items
The core issue was whether the imported items used in manufacturing hydrogen peroxide were raw materials or consumables. The Tribunal examined the process of manufacturing hydrogen peroxide, noting that the essential raw materials were hydrogen and oxygen, sourced indigenously. The imported items, such as high-density polyethylene, filter elements, and palladium catalyst, were used as consumables or catalysts, not as raw materials. The Tribunal referred to the Supreme Court's decision in CCE v. Ballarpur Industries and Vanasthali Textiles Ltd. v. CCE, which differentiated between raw materials and consumables. The Tribunal concluded that the imported items were consumables, not raw materials, and thus the benefit of the notifications could not be denied.

Conclusion:
The Tribunal held that the imported items were consumables and not raw materials, thereby allowing the assessee's appeals and dismissing the Revenue's appeals. The orders of the Commissioner (Appeals) dated 31-8-2000 and 4-9-2000 were upheld as legal and correct, and the demand of duty and penalties were not sustainable.