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TMI Blog2008 (3) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... r (J) and Shri M. Veeraiyan, Member (T) [Order per: Archana Wadhwa, Member (J)]. - 1. Being aggrieved by the order passed by the Commissioner (Appeals), revenue has preferred the present appeal. Nobody was present on behalf of the respondent. Accordingly, we have heard the learned JDR Shri M.M. Mathkar. 2. As per facts on record, the respondents are engaged in the manufacture of C.T.D. Bars falling under Chapter 72. The dispute in the present appeal relates to interpretation of exemption Notification No. 202/88-C.E., dated 20-5-88, as amended. The said Notification provided exemption from the whole of duty of excise to the specified goods falling under Chapters 72 73, if the same are manufactured out of specified inputs on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NIL rate of duty shall be deemed to be inputs on which duty has already been paid.' Notification No. 202/88-C.E dated 20-5-88 was further amended vide Notification No. 63/91-C.E., dated 25-7-91 wherein the phrase 'or charged to NIL rate of duty was omitted. The explanation, therefore, after the issue of Notification No. 63/91-C.E., dated 25-7-91 reads as follows :- 'Explanation - For the purpose of this Notification, all stocks of inputs in the country, except such stocks as are clearly recognizable as being non-duty paid, shall be deemed to be the inputs on which duty has already been paid.' 4. The Commissioner (Appeals) has observed that with effect from 25-7-91, when the phrase or charged to Nil rate of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation which specifically provided the deeming clause, would stand distinguished from the other notification even though it uses the phrase 'duty of excise leviable has already been paid' which is same phrase as discussed by the Hon'ble Supreme Court in Dhiren Chemical Industries . If the above interpretation is not adopted the very reason of that explanation to the notification will be nullified. There is an allegation in the show cause notice that since there was no specific heading in the Tariff for materials obtained from ship breaking, the inputs were not specified in column 2 of the Table and exemption under the said Notification was not available. However, the inputs continued to be classified under Chapters 72 and 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Revenue was likely to reopen cases. Thus Para 9 was incorporated to ensure that cases where benefits of exemption Notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where Revenue/Department had already contended that the benefit of an exemption Notification was not available, and the matter was sub-Judice before a Court or a Tribunal, the Court or Tribunal would also give effect to circulars of the Board in preference to a decision of the onstitution Bench of this Court. Where as a result of dispute the matter is sub-Judice a Court/Tribunal is, after Dhiren Chemical's case,, bound to interpret as set ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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