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TMI Blog2025 (3) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... export of 'iron ore lumps and fines' classifiable under CETSH 26011110/20 and 260111130/40 of the First Schedule of the Central Excise Tariff Act, 1985 from the mines located at Tumkur District, Karnataka. The process of extraction of iron ore, mining and thereafter subjecting it to various processes such as crushing, grinding, screening and washing and making into lumps and fines is construed as production and/or manufacture of excisable goods in terms of 2(f) of the Central Excise Act, 1944. 3. During the period of dispute, the appellant cleared their manufactured excisable goods (viz., Iron Ore Lumps) into DTA and discharged Central Excise duties at the tariff rate as applicable at 8.2% during July 2009 to February 2010 and at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, the appeal filed by the appellant was dismissed and appeal filed by the department was upheld by Commissioner (Appeals). Aggrieved by said order present appeal is filed before the Tribunal. 5. When the appeal came up for hearing, learned counsel for the appellant submits that the findings regarding manufacture given by the first appellate authority is beyond the scope of Show Cause Notice. The Revenue appeal was allowed on the ground that the process undertaken by the appellant does not amount to manufacture and the entire duty paid by the appellant is recoverable. Learned Counsel further submits that the said order allowing the appeal of the Revenue is beyond the scope of Show Cause Notice and relied on the following decisions in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess of amount equal to 30% of the duty payable under section 3 of the Central Excise Act, 1944. Illustration. - Assuming product X has the value Rs. 100 under section 14 of the Customs Act, 1962 and is chargeable to basic custom duty of 25% ad valorem, special additional duty of 4% ad valorem and not chargeable to additional duty. The computation of duty required to be paid would be as follows: Basic Customs duty = Rs. 25/- Value for the purpose of special additional duty if leviable = Rs. 100/- + Rs. 25/- =Rs. 125/- special additional duty if leviable= 4% of Rs. 125/- i.e. Rs. 5.0/- Total duty payable but for this exemption= Rs. 25/-+ Rs. 5.00/-= Rs. 30.00/- Thirty per cent. of the aggregates of the duties of customs 30% of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to manufacture and is excisable goods within the meaning of section 2(d) of the Central Excise Act, 1944......". E/20834- 20840/2014 ΟΙΟ No.31-37/2012 dt. 18.09.2012 was affirmed in ΟΙΑ No.639- 645/2013-CE dt.27.11.2013 No.22400-22406/2017 dt.08.10.2007 This Tribunal followed the above order and allowed the appeal by setting aside the OIA No.639-645/2013. ST/2728 & 2729/2010 ΟΙΑ No.195/2010 dt.29.10.2010 & No.186/2010 dt.30.09.2010 No.20638-20639/2024 dt.14.08.2024. This Honorable Tribunal set-aside OlAs which had in-turn denied refund claims filed for the subsequent periods by relying on ΟΙΑ No.138/2008 dt.31.10.2008. 9. Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties. There is no dispute about the factual position. The notification dated 1st March 1994, itself clarifies that there is a partial exemption to specified goods falling under Chapters 28, 29 and 30 of the Central Excise Tariff Act, 1985. A copy of this Notification dated 1st March, 1994 (Notification No. 6/94-C.E.) denotes that serial No. 6 are bulk drugs on which 10% Adv. duty can be paid. There are no conditions attached and appearing in the table. In the present case, the exemption as partially granted by this notification was available in both the cases namely clearance for home consumption and for export. If the assessee in this case has paid duty at the tariff rate namely 20% and not availed of the exemption under the subject notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture in the Show cause notice. Moreover, the issue is well settled by the decision of this Tribunal in Final Order No. 20489-20500/2017 dated 20.04.2017, Final Order no. 22400-22406/2017 dated 08.10.2017 and Final Order no. 20638-20639/2024 dated 14.08.2024 holding that the activity carried out by the Appellant is manufacture. As regards allegation of considering the excise duty paid by the appellant has deposit, we find strong force in the contention of the appellant that once the duty is not exempted absolutely, as per the provision of Section 5(1) of the Central Excise Act, it is an option available to the appellant to either opt for the benefit of Notification No. 23/2003-CE or not and it is for the assessee to decide the best met ..... X X X X Extracts X X X X X X X X Extracts X X X X
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