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TMI Blog2015 (11) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... enue demanding duty in respect of gold manufactured and cleared allegedly without payment of duty started from the show cause notice dated 1st June, 2001. In this show cause notice, it was inter alia stated that the respondent had Precious Metal Recovery Plant (PMR Plant) for the recovery of precious metal starting from anode slime. That the process of manufacturing of gold was explained by Mr. P.K. Chandra, Manager (PMR Plant) of the assessee which is recorded in the said show cause notice as well, is that during electro refining of copper the insoluble impurities of copper anode like silver, gold, selenium, copper, tellurium, barite and silica are collected at the bottom of the electrolytic cells as black mud which is called anode slime. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 02.06.2003 confirming the demand made in the show cause notice and held that the aforesaid exemption Notification does not apply to the product in question as the product in question is not any "primary gold". This order was challenged by filing appeal before the Commissioner who also rejected the appeal vide order dated 24.02.2005. The matter was further taken up before the Custom, Excise & Service Tax Appellate Tribunal by the respondent. Two members who heard the matter differed with each other. Member(Technical) decided the issue in favour of the assessee taking a view that the product in question was "primary gold" and, therefore, does not attract to levy of excise duty. Because of this difference of opinion, the matter was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of gold". Mr. Adhyaru also referred to the detailed discussion by the Judicial Member which runs as follows: "12. In view of the forgoing discussion. We held that the emergence of gold either at the gold powder stages or at all the gold bar stage was not firm any 'other form' of gold which already existed but was during the course of manufacture of copper or zinc by smelting. The various intermediary stages, as already discussed are technical necessities of the process of manufacture and to go through stages of increased concentration of gold before arriving at the stage of primary gold. 13. As we have already held that primary gold comes into existence for the first time in the appellant's factory, there can be no qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that the two entries covered two different situation. If the first exemption was broad enough to cover the situation of exemption by introducing a separate Sr. No. It was admitted before us that the second concluded that the exemption was extended to first time production of gold w.e.f. 1.3.2003." It is difficult to accept the aforesaid contention having regard to the description of goods that is exempted by the aforesaid Notification and narrated by us above. The fallacy in the aforesaid argument is to proceed on the basis as if the "primary gold" is converted from anode slime. We don't have to go back and see the original material from which final product came into existence. What is relevant and important is that silver was r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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