1998 (1) TMI 123

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....-heading 2804.90 of the schedule to the CETA, 1985. They filed a classification list bearing No. 67/90, dated 21-3-1990 claiming exemption from whole of central excise duty in respect of phosphorus under Notification No. 43/88, dated 1-3-1988 used for the manufacture of pesticides intermediates namely (1) Tri-methyl phosphite (2) Phosphorus Tri-chloride (3) Phosphorus Pentasulphide which are then used in the manufacture of pesticides/insecticides etc. in some other factory. 3. It was his submission that the respondents intended to avail exemption on phosphorus used captively in the manufacture of the 3 insecticides intermediates as mentioned above which in turn they intended to clear these intermediates under Chapter X procedure for....

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....ing the Chapter X procedure. In their factory at Vapi, they used the white phosphorus in the manufacture of Phosphorus Pentasulphide and Phosphorus Trichloride and also in the manufacture of pesticides. Since the respondents cleared their intermediate products manufactured by them at Ankleshwar factory for the manufacture of pesticides/insecticides falling under sub-heading No. 3808.10 in terms of Notification No. 43/88-C.E., dated 1-3-1988 as amended, they are eligible for the benefit of the said notification as claimed. The impugned order passed by the Assistant Collector is not sustainable in law. 5. It was also his submission that the annexure to the Notification No. 43/88 mentions Phosphorus White at Sr. No. 16 to the Annexure.....

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....rous Sulfochloride, Phosphorus Trichloride, Phosphorus Pentasulphide and Phosphorus White provided that where such use is elsewhere than in the factory of production of the goods of the description specified in the Annexure, the exemption shall be allowed subject to observance of the procedure set out in Chapter X. 8. One of the reasons for not granting the benefit mentioned in the letter dated 6-2-1991 is that yellow phosphorus was not mentioned in Notification 43/88. There is no reference to this point in the findings portion of the A.C.'s order. All the same, it would be better to clarify and record that phosphorus has many allotropes (white, yellow, red & black) and white and yellow phosphorus are, for all practical purposes, th....

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...., Malthion & Dichlorous, intermediate products Tri-methyl Phosphite (TMP), Phosphorus Pentasulphide (PPS) and Phosphorus Tri-chloride (PTC) also arise. We have noted above that TMP, PTC and PPS are also mentioned in the Annexure to the notification as specified items entitled to the benefit like White Phosphorus, subject to fulfilment of other conditions. Furthermore, if the technical process involved is such that it requires conversion of white/yellow phosphorus into intermediates before the final product emerges, that cannot be, by itself, a ground for rejection of the claim in the absence of any such condition in the notification and in any eventuality, in this particular case, not only the white/yellow phosphorus but the above three int....