2023 (5) TMI 1133 - AT - Customs

Exemption from payment of CVD - import of goods declared as Platinum Sponge - articles made from recycling of precious metals or during refining process - N/N. 05/2006 -Central Excise dated 01.03.2006 (Sr. No. 25) and N/N. 12/2012 -Central Excise dated 17.03.2012 (Sr. No. 193) - HELD THAT - Vide Notification No. 228/88-CE dated 06.07.1988, exemption from Central Excise Duty was granted to articles made from recycling of precious metals, from so much of the duty of excise leviable thereon as is in excess of the value of precious metal added and the amount charged for reconditioning/re-processing etc. - Simultaneously, vide Notification No. 230/88-CE also dated 6.7.1988 (i.e. issued on the same day as Notification No. 228/88-CE,) the Central Government exempted Catalyst, Powder, Sponge, Ingots of precious metals from Central Excise Duty from so much of the duty of excise leviable thereon as is in excess of the value of precious metal added and the amount charged for reconditioning/re-processing etc. - Subsequently, in the Budget proposals for 1994-95, Notification No. 228/88 was rescinded. Also, vide Notification No. 39/1994-CE dated 01.03.1994, unconditional and complete exemption was granted to article of precious metals irrespective of their form. However, Notification 230/1988 continued to be in force. In the budget 1995-96 Notification No. 54/95-CE dated 16.3.1995, effectively continued Notification No.30/94 dated 1.3.1994, Explanation (iv) was however added to the existing notification, clarifying the meaning of articles in relation to precious metals - Notification No.54/95-C.E dated 16.3.1995 and Notification No.230/88-CE dated 6.7.1988 continued in the subsequent years also albeit with new numbers. Sl.No.72.2 of Notification 8/96 inter alia exempted articles of platinum. Sl.No.71.3 of Notification, inter alia, exempted platinum in their primary of forms that is to say to any unfinished or semi-finished including ingots etc. Sl.No.28.14 of notification granted partial exemption, inter alia to catalysts, ingot, powder and sponge inter alia, of platinum. From 1994 onwards the notification has been issued exempting the impugned goods and the wording used in the notification then till the notification under consideration remains the same. The Ministry itself was always of the view that exemption needs to be granted to the metal in the form it emerges during a refining process, whether from ore concentrate or recycled material, the same could not have been denied. From perusal of the entry, it is evident that exemption has been granted to all the forms which arise subsequent to the emergence of the form in which these goods are imported. In view of the above circular, the contentions raised by the Revenue which go contrary to the circular issued by the Board cannot be justified. In case of Ratan Wire and Melting 2005 (2) TMI 138 - SUPREME COURT , a five judges bench of Hon ble Supreme Court has stated the law in respect of the clarifications and circulars issued by the Board stating So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law. Nothing has been brought forth in the appeal or during the arguments to show that there was any subsequent change in the wording of the Notification, or a pronouncement of Hon ble Supreme Court or a Hon ble High Court has come which goes contrary to the above clarification. There are no merits in the appeal - appeal filed by Revenue dismissed.

Summary

Issues Involved:
1. Eligibility of Exemption from Payment of CVD
2. Limitation, Interest, and Penalty

Summary:

1. Eligibility of Exemption from Payment of CVD:
The primary issue was whether the noticee was entitled to exemption from Countervailing Duty (CVD) for goods declared as Platinum Sponge under Notification No. 05/2006-Central Excise dated 01.03.2006 (Sr. No. 25) and Notification No. 12/2012-Central Excise dated 17.03.2012 (Sr. No. 193). The Show Cause Notice (SCN) alleged that the imported goods were in powder form, which is a wrought form and not covered under the said exemptions meant for unwrought forms. The noticee argued that the imported goods were indeed in their primary form as Platinum Sponge, which is the first pure form of the metal obtained during the refining process. The adjudicating authority examined the statutory provisions, production processes, and relevant case laws, concluding that Platinum Sponge is a primary form of platinum metal and thus eligible for the exemption. The exemption notifications were applicable to all unfinished or semi-finished forms, including Platinum Sponge, whether classified as unwrought or powder form.

2. Limitation, Interest, and Penalty:
Since the issue of wrong availment of exemption notification was not sustainable on merits, the adjudicating authority did not address the limitation aspect. As the demand itself was not sustainable, the question of charging interest and imposing penalties did not arise.

Appeal and Arguments:
The revenue's appeal argued that the order-in-original lacked examination regarding whether Platinum Sponge was an unfinished or semi-finished form of platinum metal. They contended that the imported Platinum Sponge was in a finished form and thus not eligible for the exemption. The revenue also emphasized the need for strict interpretation of exemption notifications and cited various case laws. The tribunal considered the historical context of exemptions and clarifications issued by the Board, concluding that the exemption should be granted to the metal in the form it emerges during the refining process, whether from ore concentrate or recycled material.

Conclusion:
The tribunal found no merits in the revenue's appeal and dismissed it, upholding the exemption for Platinum Sponge under the specified notifications. The cross objections were also disposed of.