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TMI Blog2005 (2) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 624 - CEGAT, KOLKATA] . Exemption Notification 120/84-CE dated 11.5.1984,in view of what is prescribed in Section 5A(4) of the Act, continued to be operative and effective as it was not amended, varied, rescinded or superseded under the provisions of Section 5A of the Act. The sub-heading 2710.60 significantly uses two expressions. They are (i) that is to say and (ii) excluding . The first expression is used in description, enumerative and exhaustive sense and to a great extent circumscribes the scope of the entry. But the second expression dilutes the pervasiveness by carving out an exception for the purpose of the particular sub-heading a particular type of lubricating oil. All other types of lubricating oil are covered by the residuary entry i.e. 2710.99. Under the Notification 120/84CE lubricating oil was exempted without reference to any tariff heading/sub-heading. Consequently, the criteria specified in the Notification were satisfied. That being so, majority view contained in the order of the CEGAT is not sustainable and is set aside. The minority view as expressed is confirmed. The appeals are allowed with no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X ..... riff entry. 4. Two show-cause notices issued related to demand of duty against the assessee in respect of their blended "Super TT" which was cleared at "nil" rate of duty during different periods. The said notices culminated into two different orders whereby proposed amount of duty and personal penalty were confirmed. The dates of show-cause notices, the period involved, the duty demanded and the penalty demanded are as follows:- Sl. No. Date of show cause notice Period involved Demand of duty Penalty 1 a) 29.1.1992 1.8.1991 to 31.12.1991 ₹ 20,46,994.23 Nil b) 3.8.1992 1.1.1992 to 29.2.1992 ₹ 10,77,390.00 Nil c) 1.10.1992 1.3.1992 to 31.8.1992 ₹ 19,96,362.88 Nil d) 25.2.1993 1.9.1992 to 31.1.1993 ₹ 19,83,411.76 Nil Total ₹ 71,04,159.47 2. 28.1.1994 7.1.1989 to 31.7.1991 ₹ 47,59,343.40 Rs.30 lakhs 5. Assessee preferred two appeals before the CEGAT. It was submitted that for a long time Exemption Notification dated 16.3.1976 in relation to Item no.11B and the rate of duty was nil was held applicable to it. The Entry 11B was repealed in the year 1984 and it became a part of Item 68. Thereafter Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was rightly invoked by the Department. There is specific and unambiguous definition of lubricating oil under Chapter Heading 2710.60 of Chapter 27. Chapter Heading 27.10 covers a number of petroleum products and each category is further covered under a separate sub-heading. Sub-heading 60 covers lubricating oil and there is no other sub-heading covering lubricating oils. When the exemption notification granted exemption it necessarily means that lubricating oil falling under said sub-heading alone was covered. 7. While the Judicial Member accepted the stand of the assessee appellant, the Technical Member took the view that for the purpose of Exemption Notification No. 120/84-CE lubricating oil for flash point below 94: C ceases to be lubricating oil as it acquires general description 'others' under sub-heading 2710.99. Therefore, the Department's view was accepted. With the similar observations the third member concurred with the member technical and upheld the Department's stand. 8. In support of the appeal, Mr. Joseph Vellapally, learned senior counsel submitted that the two members constituting the majority lost sight of the fact that there may be lubricating oils having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients. Explanation-The expression "mineral oil" has the meaning assigned to it in Explanation 1 of Item No.6." 12. Chapter 27 so far as relevant for the purpose of present dispute contains sub-headings 2710.60 and 2710.99 which read as follows: "2710.60- Lubricating oil, that is to say, any oil as is ordinarily used for lubrication, excluding any hydrocarbon oil which has it s flash point below 94o C. 2710.99-Others." 13. In Collector of Customs, Bangalore v. Maestro Motors Ltd. (2004 (174) ELT 289 (SC), this Court held as follows: "It is settled law that to avail the benefit of a notification a party must comply with all the conditions of the Notification. Further, a Notification has to be interpreted in terms of its language. If in the Notification exemption is granted with reference to tariff items in the First Schedule to the Customs Tariff Act, 1975, then the same Rules of Interpretation must apply. In that case the goods will be classified, even for the purposes of the Notification, as they are classified f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipal clause; (2) it must neither increase nor diminish it; (3) but where the physical clause is general in terms it may restrict it; see this explained with many examples, Stukeley v. Butler Hob, 1971". The quotation, given above, from Stroud's Judicial Dictionary shows that, ordinarily, the expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In unusual cases, depending upon the context of the words "that is to say", this expression may be followed by illustrative instances. (See State of T.N. v. Pyare Lal Malhotra (1976 (1) SCC 834), Mahindra Engineering and Chemical Products Ltd. v. Union of India (1992 (1) SCC 727); Sait Rikhaji Furtarnal v. State of A.P. (1991 Supp (1) SCC 202); and R. Dalmia v. C.I.T. (1977 (2) SCC 467). 17. The expression "that is to say" is descriptive, enumerative and exhaustive and circumscribes to a great extent the scope of the entry. (See Commissioner of Sales Tax, M.P. v. Popular Trading Com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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