9911796707
TMI Blog2008 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975. 3. The facts of the case, in brief, are enumerated hereinbelow. 4. In the year 1996-97, the appellants imported copper/brass waste and scrap for use in the manufacture of handicrafts and filed bills of entry and claimed benefit under Exemption Notification No.8/96-CE dated 23rd July 1996. In order to avoid unnecessary delay and demurrage, the appellants paid the duty under protest and filed refund claim before the Asst. Commissioner, ICD, Tughlakabad. 5. Department questioned the refund claim of the appellants by issuing notice dated 10th September 1998 to show cause as to why their refund claim be not rejected as the Tariff Heading 7404.10 would be applicable to the waste which was generated during the process of production only in the factory and then used in the same factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts and hence, the imported goods fall outside the purview of exemption under Central Excise Tariff Heading 7404.10. Despite the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." 8. In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act 1944, the Central Government, in public interest, exempted goods specified in column (3) of the Table annexed to the notification and falling within the Chapter, Heading No. or sub-heading No. of the Schedule to the Central Excise Tariff Act, 1985, specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the conditions, if any, laid down in the corresponding entry in column (5) thereof or as mentioned in the said column ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion so as to prevent duty being paid at two stages. In the present case, as the appellants have paid an amount equivalent to the excise duty at the time of import of the waste and scrap, they could not be asked to pay the countervailing duty; that if the benefit of the notification is not given to the appellants, it would mean double payment of duty which goes contrary to the law laid down by a Constitution Bench decision of this Court in the case of Hyderabad Industries Ltd. v. Union of India 1999(108) ELT 321 (SC). According to the counsel for the appellants the Tribunal committed an error in restricting the scope of the impugned notification to the copper/brass waste generated in the factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts and thereby rejecting the appellants' claim for refund simply because they had imported the said waste/scrap and then used it within the factory of production for the manufacture of final product. 11. As against this, counsel for the respondent contended that the phrase, 'within the factory of production' pre-supposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occurs after the word, 'used'. The assessing authority as well as the Tribunal have arrived at the finding that only that scrap/waste of copper would be entitled to the exemption which had been generated in the same factory because of the word, 'within' used in the heading 74.04. According to them, the word, 'within' pre-supposes that the copper waste and scrap was generated in the same factory. We are unable to read the entry in the manner as suggested by the Revenue. 16. The test laid down by the Tribunal that the benefit of the notification/tariff heading would be admissible to only that copper waste and scrap which is generated in the factory of production and not the imported waste and scrap, is not supported either by the text of the exemption notification, heading 74.04 or any other authority. 17. This Court in the case of Thermax Pvt. Ltd. v. Commissioner of Customs 1992 (61) ELT 352 (SC) has held that since the concession under Rule 192 turns only on the nature and use to which the goods are put by the user or purchaser thereof and whether he has go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation is that the article is produced or manufactured in India. The second limb to the explanation deals with a situation where "a like article is not so produced or manufactured". The use of the word "so" implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced of (sic) manufactured in India. 11. The words "if produced or manufactured in India" does not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced then it must be presumed, for the purpose of Section 3(1), that such article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. As observed by this Court in Thermax Private Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
