1995 (2) TMI 203 - AT - Customs

Tribunal grants exemption, highlights procedural flaws, remands for fresh consideration

CHANDIGARH ZINC & RESIDUE PVT. LTD. Versus COLLR. OF CUSTOMS, NEW DELHI

CHANDIGARH ZINC & RESIDUE PVT. LTD. Versus COLLR. OF CUSTOMS, NEW DELHI - 1995 (78) E.L.T. 102 (Tribunal) Issues Involved:1. Applicability of exemption from additional duty and S.E.D. under Notification No. 19/88-C.E. as amended by Notification No. 27/91-C.E.2. Classification of imported Zinc Dross under the Customs Tariff and Central Excise Tariff.3. Validity of the demand notices issued under Section 28 of the Customs Act, 1962.Issue 1: Applicability of Exemption from Additional Duty and S.E.D.The appellants contested the denial of exemption from additional duty and S.E.D. under Notification No. 19/88-C.E., as amended by Notification No. 27/91-C.E. They argued that since the imported goods were not manufactured in India, the proviso concerning the non-availment of Modvat credit on inputs did not apply. The Assistant Collector and the Collector (Appeals) rejected this plea, stating that the Notification was applicable only to goods of Indian origin where no credit of duty paid on inputs used for manufacture had been taken under Rule 56A or 57A of the Central Excise Rules, 1944.The Tribunal, after considering the arguments, noted that the exemption should not be denied merely because the goods were imported. The Tribunal relied on the judgments in the cases of Thermax Private Limited v. Collector of Customs and Carborandum Universal, which held that exemption from payment of CV duty under a notification issued under SED is also applicable to the liability for payment of additional duty under the Customs Act and the Customs Tariff Act. Consequently, the Tribunal allowed the appeal, stating that the benefit of the Notification cannot be denied on the basis of the proviso when the goods are imported.Issue 2: Classification of Imported Zinc DrossThe Vice President, in his dissenting opinion, highlighted the importance of proper classification of the imported Zinc Dross under the Customs Tariff and Central Excise Tariff. He observed that the demand notices did not specify the grounds for classification or reassessment for additional duty purposes. The Vice President emphasized that for additional customs duty (C.V.D. and S.E.D.), it was crucial to determine whether the item was a manufactured product or deemed to be a manufactured product under the Central Excise Act.The Vice President noted that Chapter 26 of the Central Excise Tariff deals with ores, concentrates, and residues or wastes deemed to be excisable products. He pointed out that the technical literature provided by the appellants indicated that Zinc Dross was a galvanizing residue, which is not recognized as a manufacturing process under Chapter 26. Therefore, if the Zinc Dross was indeed a galvanizing residue, it would not be an excisable product, and no excise duty would be leviable.Issue 3: Validity of Demand NoticesThe Vice President also raised concerns about the validity of the demand notices issued under Section 28 of the Customs Act, 1962. He observed that the demand notices did not indicate the grounds or reasons for the demands, making it difficult for the appellants to effectively defend themselves. The Vice President emphasized that the demand notices should have specified the notifications or specific levying clauses to enable the appellants to interpret and respond appropriately.Given the lack of clarity in the demand notices and the non-speaking nature of the orders passed by the lower authorities, the Vice President set aside the impugned order and remanded the matter to the Assistant Collector for de novo consideration. He directed that the principles of natural justice be duly observed and that sufficient technical and commercial literature be produced to determine the correct classification and liability.Conclusion:The Tribunal allowed the appeal, granting the benefit of the exemption Notification to the appellants. However, the Vice President's dissenting opinion highlighted the procedural deficiencies and the need for proper classification and justification in the demand notices. The matter was remanded for fresh consideration in accordance with the principles of natural justice.