2004 (3) TMI 120 - AT - Central Excise

Issues:
- Challenge against the order passed by Commissioner (Appeals) dated 17-1-1997
- Classification of products as waste and scrap of other alloy steel under sub-heading 7204.30 of Central Excise Tariff Act, 1985
- Benefit of Notification No. 13/86-Cus., dated 9-2-1986, as amended and read with Notification No. 83/90-Cus., dated 20-3-1990
- Applicability of two rates of Customs duty
- Denial of benefit of Customs Notification No. 83/90, dated 20-3-1990 to waste and scrap manufactured and cleared to Domestic Tariff area
- Conflict with the ratio of the decision of the Hon'ble Supreme Court in Goodyear India Ltd. v. CC, Bombay

Analysis:

1. The appeal challenges the order passed by the Commissioner (Appeals) dated 17-1-1997, which reversed the order of the Assistant Commissioner of Central Excise approving the classification list submitted by the appellant. The Commissioner (Appeals) contended that two rates were applicable for the goods in question, and the highest rate of duty at 50% ad valorem should be applied as per the provisions of the Explanation to Section 3 of the Central Excises and Salt Act, 1944. The appellant, a 100% Export Oriented Unit (EOU) manufacturing hand tools, filed classification lists classifying their products as waste and scrap of other alloy steel under sub-heading 7204.30 of the Central Excise Tariff Act, 1985.

2. The Assistant Commissioner approved the classification lists, granting the benefit of Notification No. 13/86-Cus., dated 9-2-1986, as amended by Notification No. 83/90-Cus., dated 20-3-1990, with a duty rate of 15% ad valorem. The Revenue challenged this before the Commissioner (Appeals), arguing that Notification No. 62/94 was not applicable to 100% EOU due to the proviso to Section 5A of the Central Excises and Salt Act, 1944. They claimed that there were two rates of Customs duty applicable, and the highest rate should be applied as per the Explanation under Section 3.

3. The appellant contended that the Commissioner (Appeals) erred in denying the benefit of Customs Notification No. 83/90, dated 20-3-1990, to waste and scrap cleared to the Domestic Tariff area. They argued that this denial conflicted with the decision of the Supreme Court in Goodyear India Ltd. v. CC, Bombay - 1997 (90) E.L.T. 7 (S.C.).

4. Notification No. 83/90, dated 20-3-1990, exempts melting scrap of iron or steel from certain duties when imported into India for specific use. The Ministry's Circular supported the appellant's entitlement to this benefit when clearing goods to the domestic tariff area. The Tribunal found that the appellant was justified in their claim and that the Commissioner (Appeals) decision was in direct conflict with the Supreme Court's decision in Goodyear India Ltd. v. CC, Bombay.

5. The Tribunal set aside the impugned order and allowed the appeal, ruling in favor of the appellant based on the entitlement to the benefit of Notification No. 83/90, dated 20-3-1990, when clearing goods to the domestic tariff area.

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