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TMI Blog1997 (11) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Phoenix Metals Pvt. Ltd. removed these ingots for supply to appellants without payment of duty claiming exemption under Notification 43/75, dated 1-3-1975. A demand of Rs. 7,34,047.29 for the period 1-9-1983 to 31-12-1983 was issued to the appellants. It was alleged that conditions relating to exemption under Notification 43/75 under which appellants removed castings without payment of duty were not satisfied in their case. Collector (Appeals) on a Revenue Appeal held that the appellants manufactured castings from ingots and not from scrap as stipulated in the notification and, therefore, they were not eligible to exemption. Hence, this Appeal. 2. Arguing for the appellants, the ld. Advocate submitted that Notification 43/75 does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h castings could be made. In regard to limitation, he submits that Apex Court in case of Ballarpur Industries - 1995 (76) E.L.T. 499 (S.C.) has clearly ruled that in case of modification of classification list, short levy can be recovered under Section 11A for a period of 6 months. 4. We have heard both sides. Notification 43/75, dated 1-3-1975 exempts aluminium in any crude form including ingots and aluminium castings, if manufactured from any of the following materials or a combination thereof, namely :- (a) old aluminium scrap; or (b) waste or scrap obtained from virgin metal, or virgin aluminium in any form, or a combination of both on which duty of excise or the additional duty leviable Section 2A of the Indian Tariff Act, 1934, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced out of duty paid waste. MEG (Glycol), however, was also used as an assisting agent. The Court observed that Notification 37/78 merely refers to fibre/tops manufactured out of duty paid waste and it does not say that no other material should be used along with duty paid waste. Notification does not use the word exclusively which is normally found in similar notifications. 5.2 In the case before us, however, it is not contended that castings are manufactured from scrap and other materials. The fact of castings being manufactured exclusively from ingots is not disputed. The ld. Advocate tried to make a distinction in regard to duty paid character in situations covered under Modvat scheme and under exemption notifications. Reliance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which appropriate rate of excise or additional rate of duty has already been paid. Since the ingots were removed under an exemption notification on nil duty payment, such a nil duty can properly be termed as appropriate duty only. 7. The question, however, is whether in terms of Notification 43/75, dated 1-3-1975 as amended castings made from ingots are eligible to exemption. This Notification against S. No. 2(A) exempts among others aluminium in crude form including ingots (............) and castings, if manufactured from old aluminium scrap or waste or scrap obtained from virgin metal or virgin aluminium in any crude form or a combination of both on which appropriate rate of excise duty has already been paid. 8. The ld. Advocate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid ingots, these are not made from scrap to be eligible to exemption. Collector (Appeals) also has held against the appellants on the ground that the castings are made from ingots and not from scrap. The Collector, therefore, has not travelled beyond Show Cause Notice. 10. The ld. Advocate strongly contended before us that even if a view is held that casting is to be manufactured from the scrap to entitle it to exemption, the notification also mentions virgin aluminium in any crude form as one of the raw materials and ingots must be considered as virgin aluminium in any crude form. He submits that tariff description of aluminium itself indicates that ingots are aluminium in any crude form and further relies strongly on Tribunal s decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from ingots which is not mentioned as one of the raw materials in Column 5 of the notification. We cannot, in considering an exemption notification, go to the parent material and hold that since ingots are made from scrap and castings in turn are made from ingots, these should be deemed to have been made from scrap. In case of Geep Flashlight - 1985 (22) E.L.T. 3 (S.C.) - Hon ble Apex Court while dealing with expression Articles of Plastic held that torch cases cannot be considered as articles of plastics but only as articles of articles of plastics. In dealing with expression Asbestos fibre and manufactures thereof under the old tariff, can it be held that gaskets manufactured from asbestos fibre sheets are manufactures of asbestos fib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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