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TMI Blog1991 (8) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... otifications and had been purchased from the market. This issue has already been decided by the Tribunal in series of orders, the latest being A/532-542/90-NRB dated 20-12-1990 and therefore similar orders may be passed. 5. As regards items at S. Nos. 8 to 12 (Annx. I), the learned DR stated that they are not used as inputs for the manufacture of final products but are only used as materials for producing sand moulds and sand cores and therefore Modvat was not available in respect of these items as held in the Tribunal s order in the case of Muzzaffarnagar Steels reported in 1990 (44) E.L.T. 552 and Mysore Kirloskar Limited reported in 1990 (50) E.L.T. 175 (Tri.) = 1990 (31) ECR 209 (Cegat SRB) 6. The learned counsel contended that these sand moulds and cores are not apparatus or equipment in the normal sense of the term and they are not paying any duty thereon. The items 8 to 12 arc used in connection with the production of these moulds and cores which are themselves used for giving appropriate shapes i.e. for casting. 7. They have filed written technical write up on the process of manufacture which may be taken note of. Further the term used in the case of Modvat order is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two items are concerned). 14. The matter was adjourned at this stage and was further heard on 19-4-1991. 15. On 19-4-1991, the learned DR filed a photo-copy of the Harmonized Commodity Description and Coding System showing classification of moulds and moulding patterns, etc. under Heading 84.80.89. 16. He stated that 84.80.79 covers moulding patterns or moulds for metals and metal carbides. 17. He would like to point out that in general the essential function of mould is to retain the material in a particular determined shape. 18. It was his submission that since the said moulds also perform the function of retaining the material in a pre-determined shape, therefore, they are articles in the nature of equipment or an apparatus. 19. He would also like to draw attention to the moulding patterns about which it has been mentioned that these include moulding boxes for metal foundry, etc. used in the preparation of sand mould . 20. It was also his contention that the life of mould is not relevant. It is immaterial whether, after they are used, they can be used further or are required to be thrown away or detroyed. He emphasised that moulds can be made of even wax or cera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was his contention that a notification does not determine whether a thing was an excisable product chargeable to duty. On the other hand the exemption notification can exempt only such things which were by virtue of the statute and the tariff found to be excisable products. 28. The learned counsel further stated that the department had at no stage asked them to either file the classification list or otherwise treated the items as excisable. 29. It was also his contention that Notification 381/86 may apply to such moulds which are marketable but the cores and moulds made by them are not marketable. Actually metal boxes are used as moulds for making the cores for manufacturing valves and cocks and the cores are consumed in the process and are destroyed. He emphasised that what they are purchasing is sand and other raw material which is used in the casting of these moulds including carbon-dioxide and other items mentioned at 8 to 12 of the chart. 30. We observe that as regards Items 1 to 7, Annexure I namely. Copper Gun Metal Scrap/Boring (7401/7402), Iron Steel Articles of Iron Steel (7209), Lead (7801), Zinc (7901), Pig Iron/Castings (7201/7307), Steel Scrap and Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this respect we notice that the respondents have filed a detailed affidavit and in so far as it relates to the process of making sand moulds and cores the facts have not been contradicted or denied as such by the department. 38. The learned DR on the other hand has drawn our attention to the classification of moulding boxes for metal foundry, Mould bases. Moulding patterns and moulds for metal or metal carbides which filed a photo-copy of the SCCM pages 1319 and 1320 showing such items as classifiable under 8480.30 and indicating that in general the essential function of a mould is to retain the material in a predetermined shape while it sets; some moulds also exert a certain pressure on the material. The DR has also argued that such moulds and cores are excisable and even dutiable unless exempted. 39. We have considered these submissions and observed that the process of manufacture of cocks and valves shows that the chemicals in question are utilised in the process for preparing specified cores and moulds which are utilised further for casting of metal valves and cocks and the coming into existence of the sand core patterns of required specifications merely constitutes, as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect thereof, against production of duty paying document as evident from the adjudicating order No. 46-48/AC/D/90, dated 28-6-1990, a copy of which is produced. He further submitted that in respect of the remaining items the same arguments advanced in the appeals 312-317/88-NRB may be taken into account. 46. We observe that as regards PVC films (Item No. 1 in Annexure II dated 19-4-1991), the department is not pressing the appeal. As such the order of the Collector (Appeals) is confirmed in so far as it relates to this item. 47. As regards Item No. 2 in Annexure II we find that the learned counsel is correct in pointing out that the Assistant Collector has himself accepted in his order No. 46-48/AC/D/90, dated 28-6-1990/10-8-1990 that Modvat credit is admissible in respect of this input. However, this by itself was not sufficient because the Order is cited in AC level order and no reasons have been given for passing this order whereas the impugned order in appeal has been passed by the Collector (Appeals) and at Executive Collector s level an appeal has been filed against the order of the Collector (Appeals) in so far as it relates to this item. In view of these circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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