TaxTMI 
TaxTMI 
2002 (4) TMI 429
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....l Excise Tariff Act, 1985 (5 of 1986) "and used in the manufacture of copper or zinc or lead concentrates". Explosives in question are covered by Chapter 36. The exemption was denied by the Assistant Collector stating that the explosives in question were not being used in the manufacture of copper concentrate. The respondent took up the matter in appeal and the Collector in the impugned order-in-appeal allowed the respondent's claim and held as under :- "I have considered the submissions made by the appellants in their written appeal as well as during hearing. During the personal hearing the consultant had submitted photocopies of their representation to the Finance Ministry, for including copper concentrates in Notification No. 191/87. They had also forwarded the recommendation of Deptt. of Mines, Govt. of India for consideration by Finance Ministry. On perusal of these documents I find that appellants have elaborately explained the use of explosives in the process of making copper concentrates. It will therefore be reasonable to hold that subsequent amendment of Notification No. 191/87 by Notification No. 63/91 by including copper concentrates it was intended to make M/s. Hind....
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....undersigned." As against the non-speaking order passed by the Assistant Collector, the Collector has passed a detailed order holding that explosives are used in the manufacture of copper concentrates. This conclusion has been reached by the Collector on the ground that the goods covered by Chapter 36 are one of the goods covered by the notification and are used in the process of making copper concentrates and that the denial of the notification would make the notification redundant and inoperative. The Collector has also followed the view that no interpretation should be given which defeats the legislative intent manifest from the scheme and wording of the notification. The present appeal faults the order of the Collector for having interpreted the notification based on purported legislative intent. 5. The notification grants exemption, inter alia, to explosives "used in the manufacture of copper...... concentrates". In metallurgy, 'concentration' is the process of obtaining a mass of high metal content from the ore or other raw materials. Thus, the exemption is for goods used in the manufacture of copper concentrates. The Revenue's contention is that manufacture of conc....
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....ining. The Collector (Appeals) has construed the notification in a manner as to achieve the purpose of the notification. This interpretation is in conformity with the rule contained in the aforesaid judgment of the Supreme Court. The true meaning of the notification has been construed by the Collector from the words of the notification themselves. In the circumstances, the observations of the Supreme Court contained in the judgement of Hemraj Gordhandas (supra) have no application to the present case. 7. In view of what has been stated above, we find no merit in the appeal of the Revenue. The same is, accordingly, rejected and the order of the Collector (Appeals) confirmed. Sd/- (C.N.B. Nair) Member (Technical) 8. [Contra per : Archana Wadhwa, Member (J)]. - I have gone through the order proposed by my ld. brother Shri C.N.B. Nair. With due respects to the Hon'ble Member (Technical) my views and order for the matter are as follows :- 9. The dispute involved in the present appeal is as regards the availability of Notification No. 191/87 to the respondents. The said notification exempts goods falling under Chapters 28, 29, 36 and 38 of the Schedule to....
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....s cannot be extended the benefit of the notification in question. The above views of Member (Judicial) was differed with by the then Hon'ble Vice President Shri S.K. Bhatnagar. As such there was difference of opinion which was placed before the third Member. The third Member after considering and appreciating the various aspects of the case concluded that the benefit of the notification cannot be extended to the explosives used for the purpose of extraction of ore at mining site inasmuch as it cannot be said to have been used in the manufacture of concentrates. Accordingly as per the majority decision the appeals filed by M/s. IDL Industries in that case were rejected. 11. As the issue involved in the present matter is identical to the one in the case of M/s. IDL Industries, which stands resolved by the majority decision of the Tribunal vide Order Nos. A-1521, 1522/Cal/2000, dated. 14-9-2000 [2001 (136) E.L.T. 425] by respectfully following the majority decision, I am of the view that the benefit of the notification will not be available to the respondents. 12. It is further noted that five Member Bench of the Tribunal in the case of Japee Rewa Cement v. CCE, Raipur....
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.... OF DIFFERENCE 15. In view of the difference of opinion between the Member (Technical) Shri C.N.B. Nair and Member (Judicial) Smt. Archana Wadhwa the matter is referred to the Hon'ble President to refer to a third Member on the following point. "Whether in view of the observation of the Hon'ble Member (Technical) the appeal is required to be rejected or in view of the observations and findings given by Member (Judicial), the appeal is required to be accepted". Sd/-(C.N.B. Nair)Member (Technical) Sd/-(Archana Wadhwa)Member (Judicial)Dated : 15-9-2000 16. [Order per : Justice K.K. Usha, President]. - The issue involved in this appeal at the instanced of the Revenue is whether the explosives used by the respondent M/s. Hindustan Copper Ltd. in the copper mines are eligible for exemption under Notification No. 191/87 as amended by Notification No. 63/91. 17. The notification granted exemption to goods falling within Chapters 28, 29, 36 and 38 of the Schedule to the Central Excise Tariff Act, 1985 and used in the manufacture of "copper or zinc or lead concentrates". Explosives in question are covered by Chapter 36. Respondent claimed that the explo....
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....eld that the explosives used for the manufacture of intermediate product, namely, limestone which in turn was used for the manufacture of cement, cannot be considered to be goods used in or in relation to the manufacture of cement. 20. The learned Member (J) was, therefore, inclined to set aside the impugned order. 21. In the light of the difference of opinion between the two Members the following issue has been referred for being considered by a third Member :- "Whether in view of the observation of the Hon'ble Member (Technical) the appeal is required to be rejected or in view of the observations and findings given by Member (Judicial), the appeal is required to be rejected." 22. The facts are not in dispute. Explosives in question are used in the mines by the respondent to extract copper ore by blasting. The ore so obtained is being converted into copper concentrates. The only dispute is whether the view taken by the Collector (Appeals) that the explosives used in the copper mines are eligible for exemption under Notification No. 191/87 as amended by Notification No. 63/91 is correct or not. Before I enter upon a discussion on the contentions raised by....
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....or blasting ore in the mines which are then processed in the factory of the assessee to make copper, zinc or lead concentrates, would be entitled to claim exemption under the notification. It is held that the activity of mining is integrally linked with the manufacture of final product from the ore generated as a result of mining and the two processes are inter-dependent. Therefore, the explosives used for blasting mines in order to remove the ores which are the raw material for the manufacture of zinc oxide etc. are to be considered as used in the manufacture of the concentrates. In coming to the above conclusion, the Tribunal placed reliance on the decisions of the Supreme Court in Indian Farmers Fertilizers Cooperative Ltd. v. CCE - 1996 (86) E.L.T. 177 and Indian Copper Corporation v. Commissioner of Commercial Taxes - AIR 1965 Supreme Court 891. In Indian Farmers Fertilizer Cooperative Ltd. case question came up for consideration was whether raw naphtha used to produce ammonia which in turn was used in off-site plants such as water treatment plant, steam generating plant and effluent treatment plant is also eligible for exemption under Notification No. 187/61. The above notifi....