2000 (9) TMI 712 - AT - Central Excise

Summary

Issues Involved:
1. Eligibility of explosives used in mining for excise duty exemption under Notification Nos. 191/87-C.E. and 7/94-C.E.
2. Interpretation of the term "used in the manufacture of" within the context of the notifications.
3. Applicability of Chapter X procedure and CT-2 certificates in granting duty exemptions.

Detailed Analysis:

1. Eligibility of Explosives for Duty Exemption:
The core issue in both appeals is whether explosives used in mining operations qualify for excise duty exemption under Notification Nos. 191/87-C.E. and 7/94-C.E. The appellants argued that mining operations are integral to the manufacture of zinc or lead concentrates, thus qualifying for the exemption. The Department contended that explosives used in mining do not directly relate to the manufacture of concentrates but only to the extraction of ores, thereby denying the exemption.

2. Interpretation of "Used in the Manufacture of":
The Tribunal examined whether the phrase "used in the manufacture of" includes the use of explosives in mining. The appellants relied on the CT-2 certificates issued by Central Excise authorities, which they argued implied that the benefit was available for mining operations. The Tribunal referred to previous judgments, including the case of Associated Cement Co. Ltd. v. Collector of Central Excise, where it was held that goods used in quarrying were not eligible for Modvat credit as they were not used in the manufacture of the final product.

3. Applicability of Chapter X Procedure and CT-2 Certificates:
The appellants argued that the issuance of CT-2 certificates and adherence to Chapter X procedure should entitle them to the exemption. However, the Tribunal noted that the substantive condition of the notification must be satisfied first. The Tribunal concluded that merely following Chapter X procedure does not automatically grant the benefit if the primary condition of the notification is not met.

Separate Judgments:

Majority Opinion (Member (J) and Member (T)):
The majority opinion held that the explosives used in mining do not qualify for the duty exemption under the notifications. They emphasized that mining and manufacturing are distinct processes, and the use of explosives in mining does not directly relate to the manufacture of concentrates. The reliance on the CT-2 certificates and Chapter X procedure was deemed insufficient to override the primary condition of the notification.

Dissenting Opinion (Vice President):
The Vice President opined that the entire process from mining to beneficiation is a continuous one, with explosives being an essential first step. He argued that the purpose of mining is to obtain concentrates, and thus, the use of explosives should qualify for the exemption. He referred to the McGraw Hill Encyclopaedia and previous judgments to support this integrated view.

Final Decision:
The matter was referred to a Third Member due to the difference in opinions. The Third Member agreed with the majority view, emphasizing that mining and manufacturing are separate processes and that the explosives used in mining do not qualify for the duty exemption under the notifications. Consequently, the appeals were rejected based on the majority opinion.

Conclusion:
The Tribunal concluded that the benefit of Notification Nos. 191/87-C.E. and 7/94-C.E. is not available for explosives used in mining operations, as these do not directly relate to the manufacture of zinc or lead concentrates. The appeals were rejected, upholding the Department's view.