9911796707
TMI Blog2001 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... fore a Bench of two Members, that Bench took note of conflicting decisions rendered by coordinate Benches of this Tribunal in Final Order No. 1972/1996 passed by the South Regional Bench at Madras in Appeal No. S/2475/93-C and the decision of the East Regional Bench in Indian Aluminium Company Ltd. v. Commissioner of Central Excise, 1998 (24) RLT 763. The East Regional Bench, after noting the final order passed by the South Regional Bench differed from the law stated therein and classified the goods under Chapter Heading 28.41. In coming to this conclusion the East Regional Bench in the reported decision relied on Rule 3(b) of the General Rules for the Interpretation of the Harmonized System. In view of the difference of opinion expressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 22-3-1991. Another show cause notice dated 24-6-1991 was issued for the period from March, 1988 to October, 1990. In the show cause notices duty, penalty, etc. were demanded on the ground that the goods cleared fall under Heading 28.41. Collector of Central Excise, Allahabad as per order dated 17-12-1992, confirmed the demand holding that Vanadium Sludge is Sodium Orthovanadate falling under Chapter sub-heading 2841.90. The said order of the adjudicating authority was set aside by Final Order No. 1249/98, dated 15-12-1998 passed by this Tribunal in Appeal No. E/703/93-C. The adjudicating authority was directed to dispose of issues afresh after complying with the principles of natural justice. Thereupon, as per Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 28.41, duty in relation to the goods cleared within six months prior to 22-3-1991 alone can be claimed. 4.Appellant raised a contention that all clearances of Vanadium Sludge were effected pursuant to the approved classification list and the price list. Therefore, there could not have been any claim for differential duty. This contention was put forth on the basis of a decision rendered by the Apex Court. Adjudicating authority overruled this contention on the basis of the provision contained in the Finance Act, 2000. 5.At first, we consider it proper to deal with the classification of the goods cleared by the appellant. Appellant is engaged in the manufacture of aluminium. In the process of extracting aluminium from Bauxite, they reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in paper industry, sodium orthovanadate is used in manufacturing of vanadium as the sodium orthovanadate can be easily converted into V2O5." 8.From the above report of the Chief Chemist attached to the Central Revenue Control Laboratory and that of the Head of Department of Chemistry, University of Allahabad, it is crystal clear that the bye-product obtained by the appellant is Sodium Orthovanadate, an oxometallic compound. 9.Appellant wants the goods, namely, Sodium Orthovanadate to be classified under Chapter Heading 26.20. This claim is made on the basis that it is ash and residues containing metals or metallic compounds obtained from the manufacture of aluminium. Note 3 to Chapter 26 states that Heading 26.20 applies only to ash a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n "provided such headings or Notes do not otherwise require" is intended to make it quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification. For example, in Chapter 31, the Notes provide that certain headings relate only to particular goods. Consequently, those headings cannot be extended to include goods which otherwise might fall there by reason of the operation of Rule 2(b)." Note 1 to Chapter 28 states that except where the context otherwise requires, the headings of this Chapter apply only to the five sub-clauses referred thereunder. In view of this specific provision in Note 1, the Bench was clearly in error in resorting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Section 11AC was brought into the statute book with effect from 28-9-1996. Even if there was levy or non-levy of duty in case of the goods cleared by the Department, it was in relation to the goods cleared up to February, 1991. In relation to those clearances, penalty as contemplated by Section 11AC can, under no circumstance, be imposed. So, we set aside the penalty imposed on the appellant by the impugned order. 14.In view of what has been stated above, we set aside the order impugned in this appeal in its entirety after upholding the classification of the goods cleared by the appellant as falling under Chapter sub-heading 2841.90. Duty leviable on the goods cleared within a period of six months immediately preceding 22-3-1991 has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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