2018 (4) TMI 61 - AT - Central Excise

Benefit of N/N. 4/2006-CE dated 01.03.2006 - receipt of sulphuric acid without payment of duty for used in manufacture of zinc sulphate - difference of opinion - Held that - the matter placed before the Hon ble President to constitute to Larger Bench to decide the following issue - For manufacture of zinc sulphate (agriculture grade) for which sulphuric acid an input whether the said sulphuric acid can be procured without payment of duty by claiming exemption at serial no.32 of Notification No.4/2006-CE dated 01.03.2006 or not? - matter referred to Larger Bench.

Summary

Issues: Appeal against denial of benefit of Notification No.4/2006-CE for procuring sulphuric acid without duty payment for manufacturing zinc sulphate.

Analysis:
The appellant appealed against orders denying them the benefit of Notification No.4/2006-CE for procuring sulphuric acid without duty payment for manufacturing zinc sulphate. The appellant procured sulphuric acid, an input for zinc sulphate production, without paying duty. However, it was contended that the exemption under Notification No.4/2006-CE was not applicable to the manufacture of zinc sulphate as it is classified separately under Chapter 28 as a micro nutrient. Show cause notices were issued, stating the appellant was not entitled to the exemption. The appellant relied on a Tribunal decision in a similar case to support their claim for exemption.

During the hearing, the appellant's counsel referenced a Tribunal decision supporting their position. In response, the respondent highlighted a previous Tribunal decision in the appellant's case, which concluded the appellant was not entitled to the exemption. After hearing both parties, the Tribunal noted the conflicting decisions in the Himgiri Metals Pvt. Ltd. case and the appellant's own case. Consequently, the Tribunal decided to refer the matter to a Larger Bench for clarification on whether sulphuric acid can be procured without duty payment for manufacturing zinc sulphate under Notification No.4/2006-CE.

In a separate note, Member (Technical) agreed with the decision to refer the matter to a Larger Bench but criticized the conduct of the appellant's advocate. The advocate failed to bring the Tribunal's decision in the appellant's own case to the court's attention promptly, causing a delay in the proceedings. The advocate was advised to be more diligent in the future to avoid such lapses.