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TMI Blog1998 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... asking the appellants to show cause why the duty involved should not be demanded as the exemption under the said Notification was not available to them. The show cause notice also alleged that even if, the goods were to fall under Heading 72.04, since the scrap arises from ship breaking therefore, the Notification No. 171/88 as amended would not be applicable even in that case. The learned Assistant Collector confirmed the said duty amount vide Order-in-Original No. 75/90, dated 29-6-1990. In the impugned order, the learned Collector (Appeals) has held in para 7 thereof : (a) that the said goods would fall in Classification under the Heading 72.30 and there is no exemption under Notification No. 171/88 would be available to them. This conclusion has been arrived at on two grounds :- (1) The Heading 72.30 specifically covers goods and materials obtained by breaking of ships etc. and is more specific; and (ii) Notification 171/88 excludes waste and scrap arised from goods and materials obtained by breaking of ships etc. 3. Heard the learned Consultant, Shri C. Chidambaram, who argued that since a no due certificate from Customs was given to the Cochin Port Trust (page 2 of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinued to pay duty. He cited the decision in the case of Ballarpur Industries Ltd. reported in 1995 (76) E.L.T. 499 (S.C.), wherein it was held that the approved classification list can be re-opened and duty was recoverable, if erroneously not levied for the past six months. 5. We have considered the arguments of both sides and records of the case. We find that the show cause notice dated 6-9-1989 issued by the Superintendent of Central Excise to the appellants reads as under :- 72.30.00 is `goods and materials of Chapter 72 obtained by breaking up of ships, boats and other floating structures . 73.27.00 is `goods and materials of Chapter 73 obtained by breaking up of ships, boats and other floating structures . On a detailed examination of the Tariff description and exemption Notification cited above, it appears that there is no exemption for ferrous waste and scrap 72.30/73.27, since the same being goods and materials of Chapter 72/73 obtained by breaking up of ships, boats etc. Even if the ferrous waste and scrap obtained by breaking up of the ship, boats etc., is classifiable under Heading No. 72.04, then also the exemption is not available in this case, since fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposition contained in the show cause notice, one by one. 10. As far as the proposition that the goods under question would be covered by Heading 72.30 is concerned, we find that there is nothing on record which compels us to interfere with the findings of the learned Collector (Appeals) in the impugned order for the simple reason that the Heading No. 72.30 is specifically designed for waste and scrap of ferrous nature arising out of ship breaking, whereas Heading No. 72.04 is basically for waste and scrap arising out of other activity. It is an accepted proposition of classification of goods that specific supersedes the general. Therefore, the impugned order rightly holds the goods to be classifiable under Heading No. 72.30. The same was declared by the appellants in the classification list and so approved. 11. We then proceed to examine whether any exemption and if so, of what kind, from excise duty is available as set forth in the show cause notice. Notification No. 171/88 as amended is the only Notification claimed for exemption, which reads as follows : Exemption to specified goods of Chapters 72, 73 and 84. - In exercise of the powers conferred by sub-rule (1) of Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .25; bottom stools, stirring or poking rods, splash plates and troughs; and ingot moulds falling under heading No. 84.54, on which duty of excise leviable under the said Schedule or the additional duty leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as the case may be has already been paid but the credit of such duty has not been (1) (2) (3) (4) (5) taken under Rule 56A or 57A of the Central Excise Rules, 1944; or (a) manufactured or produced in India; or (b) imported into India on payment of duty leviable under the said Customs Tariff Act. 04 Omitted 05 72.01 to 72.30 and 73.01 to 73.27 All goods falling under headings specified in column (2) Nil Provided that - (ii) such goods are intended for consum- ption in such ordnance factories or for supply to the Central Government departments. [Notification No. 171/88-C.E., dated 13-5-1988 as amended by Notification No. 66/89-C.E., dated 1-3-1989.] 12. On a plain reading of the said Notification, it is clear that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this allegation in the show cause notice of non-availability of duty exemption under Notification No. 171/88 is sustained. Therefore, this is a case where non-levy of duty was due to human error. In such cases, it has been clearly laid down in the decision of the Hon ble Supreme Court in the case of Ballarpur Industries Ltd., cited supra, that six months time under Section 11A is available to the Revenue for demand of its duty. It is nobody s case that show cause notice is barred by limitation in this respect. This is also not a case where re-classification of the goods under other sub-headings is involved and the heading remains 72.30. It is purely a case where the duty has not been levied due to human error. In these circumstances the case laws cited by the learned Counsel stand distinguished on the facts. 17. In view of the aforesaid discussions and taking into consideration all the facts and circumstances of the case, we come to the conclusion that there is nothing which compels us to interfere with the impugned order. The appeal is, therefore, dismissed. 18. This is to clarify that the appellants have come to this Tribunal only in appeal against the show cause notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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