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TMI Blog2013 (4) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the SAD since they can take cenvat credit whereas the importer who sells the goods as such does not get the benefit of credit and therefore either exemption has to be extended or he is to be given refund. On this account also the appellant is eligible for refund. In view of the above discussions, the impugned order is set aside and appeals are allowed and the matter is remanded to the original adjudicating authority for the limited purpose of verifying as to whether the appellant is able to show that the imported goods only have been sold by them after cutting and slitting and nothing else. - C/471, 169 & 293/2011 & C/16 & 17/12 - A/817-821/WZB/AHD/2012 - Dated:- 13-6-2012 - M.V. Ravindran And B.S.V. Murthy, JJ. Appellant Rep by: Shri Hardik Modh, Adv. Respondent Rep by: Shri S.K. Mall, AR Per: B S V Murthy: The appellant is a dealer of steel items and import HR/CR coils and also electrical steel of various descriptions. The coils are cleared on payment of duty including additional duty and customs duty levied under Section 3(5) of Customs Tariff Act, 1975 popularly known as Special Additional Duty (SAD). Under Notification No. 102/2007-CUS dated 14/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils of iron, non-alloy, other alloy steel of width of less than 600 mm". Different products sold by the appellant when considered from the description of headings on the tariff are described as under, "flat rolled products of iron or non-alloy steel of width of 600 mm. or more", "flat rolled plated or coated/flat rolled products of iron of width of 600 mm." "cold rolled/reduced not coated, flat or coated", "straight roll strips of iron or steel of width 600 mm or more coated or not coated" and "flat products of iron non-iron steel of width less than 600 mm". 5. The activities undertaken by the appellant are cutting the imported steel vertically and horizontally before selling. In the result, tariff heading has changed. No doubt the name and description namely "flat rolled products/coils" remains common, but the thickness, length and the width of the goods sold by the appellant varies from customer to customer. Ongoing through some purchase orders and invoices placed in the refund claim relevant to the bill of entry no. 245141 it is also noticed that in the purchase order, customer listed the goods as "cold rolled sheets 1.5 mm./3 mm., CRCA 1.5 mm., CRC sheets 6.5 mm., CRCS sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and use emerges from the process. Based on this decision, the Board issued a Circular No. 811/2005 dated 02/03/2005 accepting that cutting of HR/CR coils of iron and non-alloy steel into sheets and slitting into strips of lesser width does not amount to manufacture. This is the circular which is relied upon by the appellant. In the case of M/s. Agarwala Timbers Pvt. Ltd. also this Tribunal had considered several decisions to come to a conclusion that the process undertaken by the appellants had not resulted in different product, placing reliance on the case of Kutty Flush Doors Furniture Co. (P) Ltd. Vs. Collector of Central Excise, Madras 1988 (35) ELT 6 (CST) and Y. Moideen Kunhi Ors. Vs. Collector of Central Excise, Bangalore Ors. -1986 (23) ELT 293 (Kar.) and M/s. Vijrom Chemicals Pvt. Ltd. Vs. CC, Bangalore - 2006 (199) ELT 751 (T), Titaghu Mills Company and Anr. Vs. State of Orissa Ors. - 1985 (Supp) SCC (280), Titaghur Paper and Sterling Food Vs. State of Karnataka - 1986 (26) ELT 3 (S.C), Bangalore Wood Industries Vs. ACCT (Assessment) Manu/KA/1029/1993 . All these cases would support the case of the appellant that if the process does not amount to manufacture and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of such a manufacture, and the planks, rafters and cut sizes sawn out of the logs, are different commodity. This argument is based on the assumption that the logs wood/timber undergoes a transformation as a result of labour and manipulation and a new and different article emerges out of such process. Further argument is that the planks, rafters and cut sizes have a distinct name, character or use in the commercial parlance. 46. Though the petitioners have approached this Court even before an adjudication is made by the authorities under the Act, it is strenuously contended by the learned Counsel for the petitioners is that in view of the position in law being more or less settled by the Supreme Court in earlier cases and in the latest decision in Titaghur Paper Mills' case, they should not be driven to agitate this matter before the various forums provided under the Act. It is also submitted that in view of the Trade Notice issued by the Collector of Central Excise, the authorities under the Act cannot take a different view and challenge to the order of the original authority before other appellate forums would be a futile exercise. 47. The Supreme Court went into bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same whether it amounts to manufacture or not and even if the goods were sold in changed form goods have to be treated as same. In the case of sales-tax, the tax is not on manufacture. Therefore in the case of levy of sales-tax, consideration of the facts as to whether sales-tax has to be levied depends upon as to whether goods remained the same after process. In respect of timber and in respect of steel cut and sold, in all the above decisions, it has been held that the goods have remained same even though it may be different in form and description also may have changed. Under these circumstances, it has to be" held that the goods remained the same even after slitting/cutting excepting the width and the length of the sheet which may change but not identity. Even after slitting and cutting, the products remain cold rolled/hot rolled sheets/coils. 12. It was submitted by the ld. A.R. that the goods sold have to be the same ones which were imported and cannot be different for claiming the refund. He submitted the decision of the Tribunal in the case of M/s. Vijrom Chemicals Pvt. Ltd. cannot be applied since in that case the goods remained chemicals after re-packing was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that the goods sold by the, importer are different from the one imported by him, it cannot be held that the Notification benefit would not be available. We are in agreement with the ld. A.R's submission that the Notifications are to be interpreted strictly in terms of words used therein and nothing can be added or subtracted as observed in the case of M/s. Novapan India Ltd. Vs. CCE, Hyderabad - 1994 [73) ELT 769 (S.C). In this case the dispute has arisen whether the imported goods can be considered as the "same goods" which are sold subsequently or not. When Hon'ble Supreme Court has held that "timber" and "sawn timber" are same and our decision to the same effect in the case of M/s. Agarwala Timber (Supra) has been upheld by Hon'ble Gujarat High Court the same cannot be ignored and the Notification interpreted differently. It was also submitted that in the case of Vijrom Chemicals even though re-packing amounted to manufacture, the tariff heading did not change. However, it is a settled law that what is required to be seen while considering whether the process amounts to manufacture is whether a new article with distinct name, character and use has emerged or -not and not w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry. 121. I have given my earnest consideration to these concerns and the competing claims. I am persuaded about a clear disability that our commodity taxation inflicts on the indigenous goods vis- -vis the imported goods. While the former are subjected to sales tax and other local taxes and levies, the import sector, escapes them by their very nature. In order to provide a level playing-field to the domestic industry, I propose to impose an additional non-modvatable levy of 8% on imports which is approximately equal to the burden of local taxes on domestic producers. This duty should not be viewed as a protectionist measure but only as a response to a legitimate demand for a level playing-field. The new levy would not apply to crude oil, newsprint, capital goods sector under a special tariff regime or goods which are subjected to additional duties of excise in lieu of sales tax, gold and silver imported by passengers or other nominated agencies and life saving drugs that are free from customs duties. The levy would also not apply to goods which are currently exempt both from basic and additional duties of customs. Similarly, goods imported for subsequent trading have also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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