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TMI Blog2016 (5) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... is duty paid accordingly, the condition of notification No. 180/88-CE stand fulfilled. Therefore the appellant is entitled for the said exemption notification by applying the decision of Tribunal in the case of Baroda Ferro Alloys & Ind. Ltd. Vs. Commissioner of C. Ex., Vadodara [1999 (11) TMI 385 - CEGAT, MUMBAI]. - Decided in favour of appellant - Appeal No. E/1451/2005 - Order No. A/87618/16/SMB - Dated:- 28-1-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri T.Chandran Nair, Advocate with Shri P.K. Shetty, Advocate For the Respondent: Shri Ashutosh Nath, Asstt. Commr. (A.R) ORDER PER : RAMESH NAIR The appeal is directed against Order-in-Appeal No. BR/52/M- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Commissioner (Appeals), which was rejected and the Order-in-Original was upheld therefore the appellants are before us. 3. Shri T. Chandran Nair, Ld. Counsel along with Shri P.K. Shetty Ld. Advocate appearing on behalf of the appellant submits that the exemption Notification No. 180/88-CE dt. 13.5.1988 was denied on the presumption that since the Aluminium waste and scrap is exempted under Notification No. 182/84-CE dt. 1.8.1984, the goods made out of waste and scrap clearly identifiable as non duty paid goods and, therefore the conditions of notification that the goods should be manufactured from goods falling within Chapter 76 of the Schedule on which excise duty has already been paid, is not fulfilled. He submits that as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 180/88-CE, if no material is available or any evidence adduced by the department or appearing in any records, it has to be accepted that the waste and scrap procured by the appellant is deemed to be duty paid. Therefore the exemption Notification No. 180/88-CE should not have been denied. In support of his submission he placed reliance on the following judgments: (i) Commissioner of Central Excise, Allahabad Vs. U.P.Aluminium Indus. -1999 (111) E.L.T. 739 (Tribunal) (ii) Utkal Automobiles Ltd. Vs. Collector of Central Excise, Patna-1999 (114) E.L.T. 277 (Tribunal) (iii) Commissioner of C.Ex., Jalandhar Vs. Emdet Engineers Pvt. Ltd.-2010 (253) E.L.T. 756 ( P H) (iv) Ankur Steels Vs. Commissioner of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Notification No. 182/84-CE. Therefore the goods manufactured by the appellant is not manufactured out of the duty paid goods. On careful reading of Notification No. 182/84-CE, we find that it carries the following condition: If, manufactured from goods falling within Chapter 76 of the said Schedule on which duty of excise leviable under the said Schedule or the additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975), as the case may be, has already been paid. Explanation for the purpose of this Notification: all stocks of aluminium and products thereof in the country except such stocks as are clearly recognizable as being non duty paid shall be deemed to be aluminium and product thereof on which duty has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E stand fulfilled. Therefore the appellant is entitled for the said exemption notification. This issue has been considered by this Tribunal and held as under: (i) Commissioner Of Central Excise, Allahabad Versus U.P. Aluminium Indus. 1999 (111) E.L.T. 739 (Tribunal) held that- 7.We have carefully considered the pleas advanced? by the ld. JDR. We have also gone through the impugned order. We observe that the explanation to Notification 180/88 is that for the purpose of this Notification, all stocks of aluminium and products thereof in the country shall be deemed to be aluminium and products on which the duty has already been paid except such stocks as are clearly recognisable as being non duty paid. Aluminium waste and scrap being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to duty. Relying on the decision of the Patna High Court in Tata Yodogawa case (supra) and the Tribunal decision in I.E.L. case (supra) the appellants contend that exemption from duty is not the same thing as Nil rate of duty as also that the use of the phrases appropriate duty of excise has been paid or has already been paid in exemption notifications do not envisage payment of a duty when no duty is payable under law. We find that the aforesaid contentions of the appellants are well founded. The cases cited by the appellants have settled the position that the expressions appropriate amount of duty or has already been paid would mean only duty that ought to have been paid or contracted to be paid. Where such duty in terms of an exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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