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TMI Blog2015 (7) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... d that products LABFS and LARO will be classifiable under 2710.29 as claimed by the appellant. It is practice that in case of any doubt or ambiguity, taxing provision is normally construed in favour of the assessee but when it is case of granting some exemption then there should be strict interpretation and in case of any doubt or ambiguity the benefit must go to the State. The word Kerosene used in the exemption Notification 75/84-CE therefore, cannot be understood by taking recourse to parameters given to Kerosene , under CETH 2710. The word Kerosene has to be understood with respect to interpretation/ understanding attributed by those who deal in Kerosene . This is the ratio laid by the Hon'ble Supreme Court in the case of IOCL vs. CCE, Vadodara [2010 (10) TMI 7 - SUPREME COURT OF INDIA], and is relevant Product LABFS and LARO are not cleared as Kerosene at all and only used for the purpose other than for illuminant oil for burning lamps or other domestic use. The ratio of the law laid down by the Hon'ble Supreme Court in the case of IOCL vs. CCE, Vadodara (supra), word Kerosene used in exemption notification No. 75/84-CE will have to be understood only with that category of Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stics. (a) It is a mineral oil (b) It should have smoke point of 18mm or more (c) It should have FBP not exceeding 3000C; and (d) It should not be mineral Colza Oil and turpentine substitute (v) That both LABFS and LARO manufactured by the appellant have these characteristics and will be classified under CETH 2710.29 and will be eligible to Notification No. 75/84-CE which exempts all categories of Kerosene and no specific Chapter heading or sub-heading is mentioned in the exemption notification and no intended use/condition is specified in Column -4 of Serial No 52 of the exemption Notification No. 75/84-CE. (vi) That as per case Law CCE Vs IOCL [2003 (157) ELT 41 (Tri.)] in their own case, Larger Bench has held that all kinds of mineral oils, except those specifically excluded from 2710.29, are to be classified under 2710.29. That similar view was taken by 5 member Larger Bench in the case of CCE vs. Reliance Industries Limited [2000 (19) ELT 29 (Tri. LB)]. (VII) That definition of Kerosene given in CETH 2710.29 will be applicable to the word Kerosene used in Serial No. 52 of Notification No. 75/84-CE. (viii) That as per the ratio laid down by Apex Court in the case of GSF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Turbine FuelRs. 1000 per KL at 150C. 2710.29 -- Other ₹ 500 per KL at 150C. 2710.99 -- Other 20% plus ₹ 250 per tonne. 4.1 Learned AR emphasized that for the earlier show cause notice, Revenue is seeking classification under 261029 of the CETH and for the later period show cause notice, the classification is claimed under CETH 271099. It was strongly argued by the learned AR that both LABFS and LARO are not cleared by the appellant as Kerosene and the same are also not ordinarily used for illuminate in oil burning lamps. 4.2 So far as admissibility of exemption under Notification 75/84-CE is concerned, learned AR argued that only those Hydrocarbon/ mineral oils which are cleared as Kerosene under PDS will be eligible for exemption under Notification No. 75/84-CE as held by Hon'ble Supreme Court in the case of IOCL vs. CCE, Vadodara [2010 (259) ELT 172 (SC)]. It was strongly emphasized by the learned AR that even if the interpretation given by Hon'ble Supreme Court was with respect to Notification No. 05/98-CE dated 02.6.1998, still the ratio laid by the Apex Court will be applicable to the facts of the present proceedings. Learned AR made the Bench go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited [2000 (119) ELT 26 (Tri. LB)] and CCE vs. IOCL [2003 (157) ELT 41 (Tri.)]. It is the case of the appellant that it has been held by the five Members Bench in the case of CCE, Bombay vs. Reliance Industries Limited Heavy Normal Paraffin (HNP) is classifiable under CETH 2710.29 and not under CETH 2710.99 when parameters specified in CETH 271029 are fulfilled. It is observed that so far as classification of the products manufactured by the appellant is concerned the issue is no more res-integra in view of the case law of CCE vs. IPCL [1990 (46) ELT 173 (Tri.)]:- "27. Applying the above principle to the facts of the present case, we see that the term Kerosene, though a commonly understood term, has been defined by the Legislature and the definition contains the technical terms smoke point and final boiling point. If the intention of the Legislature was to restrict the scope of the term to Kerosene properly so called, and as popularly understood, there would appear to have been no need to define the term. This is all the more so because, as we have seen earlier, sub-item(2) read Others and not Kerosene which would have been the term employed if the intention was to restrict the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to Notification No. 5/98-CE dated 02.6.1998 and the same can not be used for interpreting a different notification i.e. Notification No. 75/84-CE. We are not inclined to accept the arguments made by the appellant because the word Kerosene has been interpreted by the Apex Court in this judgment and certain observations have been made. Learned AR also relied upon the judgment in the case of Orient Traders vs. Commercial Tax Officer, Tirupati [2009 (237) ELT 447 (SC)]. Para 18 of this case law is relevant where the Apex Court has made following observations:- "18. It is well established principle that the exemption notifications are to be construed strictly, reference may be made to State of Jharkhand & Others vs. Tata Cummins Limited and another, 2006 (4) SCC 57 and Kartar Rolling Mills v. CCE, New Delhi - 2006 (4) SCC 772. If the intention of the legislature is clear and unambiguous, then it is not open to the courts to add words in the exemption notification to extend the benefit to other items which do not find mention in the notification. In the present case, there is no ambiguity in the expression used in the G.O. The intention of the State Government is clear that only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 75/84-CE therefore, cannot be understood by taking recourse to parameters given to Kerosene , under CETH 2710. The word Kerosene has to be understood with respect to interpretation/ understanding attributed by those who deal in Kerosene . This is the ratio laid by the Hon'ble Supreme Court in the case of IOCL vs. CCE, Vadodara [2010 (259) ELT 172 (SC)], and is relevant. In this case, Apex Court has interpreted the Serial No. 27 of exemption notification 5/98-CE dated 02.6.1998, where description of goods was given as follows:- Sr. No. Chapter or heading No. or sub-heading No. Description of goods Rate Conditions (1) (2) (3) (4) (5) 27 27 Kerosene, that is to say, any hydro-carbon oil (excluding mineral colza oil and white spirit) which has a smoke point of 18 mm or more (determined in the apparatus known as smoke point lamp in the manner included in the Bureau of Indian Standards Specification ISI : 1448 (p. 31)-1968 as in force for the time being) and is ordinarily used as an illuminant in oil burning lamps 10% - 5.5 After recording the facts of the case and rival submissions made by both sides, the Hon'ble Supreme Court made the following observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by the appellant IOCL was cleared to industrial users, though the product cleared to these users was also Kerosene . However, it was held by the Apex Court that for the purpose of exemption under Notification 5/98-CE, the same product will not be considered as Kerosene as the same is not cleared by IOCL through the PDS. In the present case before us, it is not disputed that the product LABFS and LARO are not cleared as Kerosene at all and only used for the purpose other than for illuminant oil for burning lamps or other domestic use. The ratio of the law laid down by the Hon'ble Supreme Court in the case of IOCL vs. CCE, Vadodara (supra), word Kerosene used in exemption notification No. 75/84-CE will have to be understood only with that category of Kerosene which is distributed through PDS as Kerosene . For the purpose of classification of mineral oils other than Kerosene cleared through PDS, these products will also be classified under CETH 2710.29, as held by various judicial pronouncements, but for the purpose of benefit under exemption notification 75/84-CE only those categories of Kerosene will be eligible which are distributed though PDS. Therefore, on admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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