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TMI Blog1990 (11) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... tional duty of Customs (CVD) has been recovered in excess and that they were entitled to Notification 168/69 for the goods which had been classified for CVD purposes under Item 26B(1) of the Central Excise Tariff Act. The Assistant Collector (Refund Deptt.), Bombay Custom House rejected these refund claims saying that the exemption under Notification 168/69 is available only on production of evidence to the effect that the goods imported have been used for manufacture of zinc unwrought within the factory of production and that the appellants had not produced any such evidence. The appeal was filed against the Asstt. Collector s order and at the appeal stage, they raised the issue of alternate classification of the goods under Item 68-CET an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c ash and zinc residue imported should be classified under Item 68-CET, as these imports were prior to 1-3-1981 in the light of the Tribunal s decisions, Board s Tariff Advice and the Public Notice based thereon issued by the Bombay Custom House. 3. Shri M.K. Sohal, the learned DR contended that Item 68 is essentially a residuary item to which goods can be consigned only if they are not classifiable under any of the Items 1 to 67 of the Central Excise Tariff. The learned DR pointed out that the tariff description under 26B(1) at the material time specifically included zinc ash and zinc dross. Hence, there was no question of classifying such items as goods not elsewhere specified under Item 68-CET. As regards the reliance placed on the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied) In the budget of 1981, this sub-item was substituted by the following : (1) Unwrought, including ingots, cakes, bars, blocks, hard or soft slabs, billets, plates, cathodes, anodes, pellets, spelter, and broken zinc. At the same time, a separate sub-item (1a) waste and scrap was also introduced. An Explanation was also added to the Tariff Item regarding scope of waste and scrap . From a perusal therefore, of tariff description under Item 26B-CET its amendment on 1-3-1981 would clearly show that since with that amendment and introduction of sub-item for waste and scrap, the new sub-item would cover zinc ash and zinc dross and so these materials had been deleted from sub-item (1) of Item 26B in the Finance Bill of 1981. It will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he smelter stage, and that zinc ash arising during rolling etc. process would be free of duty, as also the submission that Bombay Custom House had issued a Public Notice, dated 3-11-1981 classifying zinc ash under Item 68-CET for the period prior to 1-3-1981 which is also relied upon by the appellants in this appeal and hence eligible for exemption under Notification 48/79. After examining the tariff description under Item 26B(1), the Tribunal held It is evident from the above that whatever be the nature and character of zinc ash, the law makers have chosen to mention it by name as a taxable product in the Tariff. In such a situation it is not permissible to bring in any argument which would frustrate the manifest legislative intention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier Trade Notice of November 1981 classifying the goods under Item 68-CET. 6. In a much later decision in the case of Devidayal Agro Metal Industries v. Collector of Customs, Bombay 1988 (33) E.L.T. 467, the Tribunal was considering a case wherein the appellants contested levy of CVD on zinc dross under Item 26B(1) and it was held, following the ratio of Supreme Court decision in the case of Khandelwal Metal Engineering Works v. Union of India - 1985 (20) E.L.T. 222 that This finding would eliminate Shri Beri s argument that there is no manufacture at all. Shri Beri, of course, advanced that argument only to resist classification under Tariff Item 68-CET. Once an item is included in any Tariff heading, questions regarding its manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that prior to 1-3-1981, zinc ash was assessable to duty under Item 68-CET. But it is found that the two earlier decisions of the Tribunal (Chemtech Industries Testeels) holding the goods classifiable under Item 26B(1) and also not accepting the Departmental Public Notice classifying the goods under Item 68-CET had not been noticed. We further observe that by a Trade Notice No. 61/83, dated 1-6-1983 - 1983 (11) E.L.T. (T 113) the Baroda Collectorate had withdrawn the earlier Trade Notice No. 201/82, dated 6-11-1982. It was stated therein, The matter regarding the classification of the above products (zinc dust/powder zinc dross/ash and skimmings) has been re-examined. It is considered that zinc dust powder and zinc dross/ash/skimmings ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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