9911796707
TMI Blog1999 (12) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ;Briefly stated the facts are that M/s. Continental Petroleum Ltd. imported waste oil which was classified by them under Heading 38.23 of C.T.A. The Assistant Collector classified the product under sub-heading 3403.19 of C.T.A. and Heading 34.03 of the Schedule to the Central Excise Tariff Act and directed them to pay appropriate duty holding that the impugned product was primarily a product containing petroleum Oil or Oils obtained from Bituminous material and the product has the basic characteristics of a lubricating oil; that according to test report, the product was mainly consisting of Hydrocarbon Oil and other Carbonaceous matter wherein the Hydrocarbon oil is less than 70% by weight and it had a flash point of above 94°C. The Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils drained from various systems where mineral oils/mineral oil preparations have been used, these oils are incapable of being manufactured in India and as such no countervailing duty can be imposed on such Waste Oils; that the Constitutional Bench of the Apex Court in the case of Hyderabad Industries Ltd. v. Union of India, 1999 (108) E.L.T. 321 (S.C.) has held that "The decision in Khandelwal Metal Engineering Works case to the effect that additional duty of Customs is leviable merely on the import of the article even if it is not manufactured or produced in India does not appear to be correct inasmuch as the said conclusion is based on the premise that Section 12 of the Customs Act, and not Section 3(1) of the Tariff Act, is the charging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the cases of the Appellants themselves, the Tribunal has also observed similarly. He further submitted that the burden to prove that such Waste Oils cannot be manufactured in India is on the Appellants; that no evidence has been brought on record and as such burden of proof has not been discharged by them. Finally he mentioned that it is not also clear whether the demand was only in respect of the Additional Duty of Customs. 5. In reply the learned Counsel for the Appellants submitted that in their reply to show cause notice, they have clearly mentioned that "the imported waste oil is not at all subject to levy of additional duty equal to excise duty (Countervailing duty) under Section 3 of the Customs Tariff Act, 1975 in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 34.03 of the Tariff. We order so here also. The learned Advocate, relying upon the decision of the Supreme Court in the case of Hyderabad Industries Ltd., Supra, has contended that Additional Duty of Customs is not leviable as the Waste Oils have not emerged on account of any manufacturing activity and that waste oil purchased by them indigenously is not subjected to levy of excise duty. Such a legal plea regarding leviability of duty can be raised at the second appeal stage, more so when the plea is based on a judgment of the Supreme Court which is law of the land. In earlier Order Nos. 822 to 824/99-C [2000 (115) E.L.T. 458 (Tri.)] the plea was not allowed to be raised as the law laid down in Khandelwal Metal & Engineering Works, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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