9911796707
TMI Blog2005 (2) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise, Calcutta-I). 2. The factual position in a nutshell is as follows: The appellant is engaged, inter alia, in the manufacture of blended or compounded lubricating oils. It also processes a product called 'Super TT' which the appellant claimed to be a blended lubricating oil ordinarily used for lubrication. The undisputed process of manufacture of the said product as stated by the appellant is as under: "Base Oils are taken to the blending kettle, heated to remove moisture. Additives are added and mixed well. Temperature reduced and MTO and green dye added and mixed well, to get the final product." 3. Admittedly, the flash point of the 'Super TT' is below 94oC Therefore, assessee appellant claimed that the same is not classifiable under Heading 2710.60 of the Tariff under Customs Tariff Act, 1985 ( in short the 'Tariff Act') as the same covers lubricating oils having flash point more than 94:C. As such, the product was claimed to be classifiable as 'others' under sub-heading 2710.99. Revenue disputed the position and held that the benefit of the Exemption Notification No.120/84-CE dated 11.5.1984 is applicable only to the lubricating oils falling under sub-heading 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpounding of mineral oils with other ingredients. The said exemption was granted without reference to any tariff item under which such blended and compounded lubricating oils were classified. The new Excise tariff contained in the Tariff Act came into force w.e.f. February 1986. Under that Tariff, blended or compounded lubricating oils with flash point above 94: C were classifiable under sub-heading 2710.60 and other lubricating oils along with other petroleum products were classified under Chapter sub-heading 2710.99 which was a residuary entry. The Exemption Notification No.120/84-CE continued un-amended till it was rescinded by Notification No.64/94-CE dated 1.3.1994. Three classification lists were filed by the appellant which were operative from 1.4.1986, 5.5.1996 and 1.3.1998. All these classification lists were approved by Assistant Commissioner by extending the benefit of Notification No.120/84. The classification list dated 18.3.1988 was operative for the relevant period under dispute. Since product was having flash point below 94: C, therefore, there was no question of any suppression as alleged by the Department. It was further submitted that the notices were issued afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise and Salt Act, 1944 (1 of 1944), specified in the corresponding entries in column (2) of the said Table, from so much of the duty of excise leviable thereon under Section 3 of said Act as is in excess of the duty leviable at the rates specified in the corresponding entries in column (4) of the said Table; TABLE S. No. Item No. Description Rate of duty (1) (2) (3) (4) 6 11B Blended or Compounded lubricating oils and greases. Nil. 11. Notification dated 11.5.1984 reads as follows: "BLENDED OR COMPOUNDED LUBRICATING OILS AND GREASES. 120/84-CE, dt. 11.5.1984. Blended or compounded lubricating oils and grease are fully exempt from basic excise duty. G.S.R. 354(E) - In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts blended or compounded lubricating oils and greases, that is to say lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients, from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944). Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd every order made under sub-rule (2) of Rule 8 of the Central Excise Rules, 1944, and in force immediately before the commencement of the Customs and Central Excise Laws (Amendment) Act, 1987 shall be deemed to have been issued or made under the provisions of this Section and shall continue to have the same force and effect after such commencement until it is amended, varied, rescinded or superseded under the provisions of this Section." 14. Undisputedly in the present case there was no reference to any tariff entry in the Notification. Therefore, the majority view is clearly unsustainable. Additionally, we find that CEGAT had in some other cases taken the same view as the minority view. It is fairly accepted by learned Additional Solicitor General that there has been no challenge to the said decisions one of which is Bharat Petroleum Corporation Ltd. v. Commissioner of Central Excise, Kolkata-I (2003 (154) ELT 698 (Tri-Kolkata) decided on 30.10.2002. 15. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
