2004 (2) TMI 144 - AT - Central Excise

EOU - finished products - Eligibility of the respondent for exemption under Notification No. 8/97-C.E. for Hydrogen Peroxide manufactured and cleared to DTA - HELD THAT - A reading of the decision of the Supreme Court in Collector v. Ballarpur Industries Ltd. 1989 (9) TMI 102 - SUPREME COURT would clearly show their Lordships were laying down general tests in order to distinguish raw materials from consumables. We are not able to accept the contention of the respondent that the decision has to be understood only with reference to the notification considered therein. The Board's circular dated 5-5-98 is also of no help to the assessee. In the above circular, what is mentioned is that even if imported consumables are used, the benefit of Notification No. 8/97 cannot be denied. In the present case, the contention taken by the Revenue which we are inclined to accept is that the imported materials used by the assessee in the manufacturing process are not consumables but raw material. The definition of the term 'consumables' from the Import-Export Policy also will not help the assessee in the light of the tests laid down by the Hon'ble Supreme Court in Collector v. Ballarpur Industries Ltd 1989 (9) TMI 102 - SUPREME COURT . Thus, we set aside the order passed by the Commissioner (Appeals) and hold that the respondent is not entitled to the benefit of Notification No. 8/97. In the result, the appeals are allowed and the order passed by the original authority is restored.

Summary

Issues involved: Eligibility of the respondent for exemption under Notification No. 8/97-C.E. for Hydrogen Peroxide manufactured and cleared to DTA.

Summary:
1. The appeal concerns the eligibility of the respondent for exemption under Notification No. 8/97-C.E. for Hydrogen Peroxide manufactured and cleared to the DTA from their EOU.

2. The assessee claimed that the Hydrogen Peroxide was wholly manufactured from raw materials produced in India, but the original authority disagreed, citing imported raw materials alongside indigenous ones. The Commissioner (Appeals) sided with the assessee, deeming the imported items as consumables, not raw materials, and granting exemption under Notification No. 8/97. The Revenue challenges this finding.

3. The Revenue argues that the imported items are raw materials, not consumables, emphasizing the importance of ingredients that lose their identity in the manufacturing process. Citing legal precedents, the Revenue contends that essential ingredients qualify as raw materials, even if they are consumed in the process.

4. Legal tests from previous cases establish that ingredients crucial to the manufacturing process are considered raw materials, not consumables. This distinction was upheld in cases involving denim fabric manufacturing.

5. The respondent's counsel references legal interpretations and definitions of consumables to support their position. However, the Tribunal leans towards the Revenue's argument, emphasizing the general tests set by the Supreme Court to differentiate between raw materials and consumables.

6. The Tribunal rejects the respondent's interpretation of legal precedents and definitions, concluding that the imported materials used are raw materials, not consumables. The Board's circular and definitions do not sway the decision in favor of the respondent.

7. Consequently, the Tribunal overturns the Commissioner (Appeals) decision, ruling that the respondent is not entitled to the benefit of Notification No. 8/97. The original authority's order is reinstated.