TaxTMI 
TaxTMI 
2006 (7) TMI 370
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.... the levy of CVD under Section 3 of the Customs Tariff Act, it deemed manufacturer in India is to be considered and thereafter the rate of the Central Excise Duty leviable thereon determined. This position has been settled by the decision of the Constitution Bench of the Supreme Court in Hyderabad Industries v. UOI - 1999 (108) E.L.T. 321 (SC) relevant portion from the judgment is extracted below :- "1.1. The words "if produced of manufactured in India" do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced then it must be presumed, for the purpose of Section 3(1), that such article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article in India is not necessary. As observed by this Court in Thermax Private Limited v. Collector of Customs, Bombay [1992 (61) E.L.T. 352 (S.C) = (1992) 4 SCC 440] at pages 452-453 that Section 3(1) of the Customs Tariff Act "specifically mandates that the CV....
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....ocess of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore imported is in powder or granule form is wholly immaterial. What has been to be seen is what is meant in international trade and in the market by wolfram ore containing 60% ore more WO3. On that there is a preponderation weight of authority both of exports and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded either by crushing the rock and sorting out pieces of wolfram or by washing or magnetic separation and other similar and necessary process it becomes a concentrate but does not cease to be ore. Unless the ore is roasted or treated with any chemical it cannot be classed as processed". Following this judgment, in Hyderabad Industries v. UOI - 1995 (78) E.L.T. 641 (SC), the Hon'ble Supreme Court has held as follows :- "We are satisfied upon the material placed before us, as indicated in the judgment under appeal quoted above, that all that the appellants in Civil Appeal 1354 of 1980 do is to separate the asbestos fibre from the ....
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....o the Apex Court is that the chemical structure of the ore should remain the same. Thus, the principle of law is clear that basic operations carried out to produce usable ore would not amount to manufacture of a new product. In the instant case, the appellants are carrying out certain physical and mechanical processes to separate mineral sands from ordinary sea shore sand. At the end of the processes, the mineral sands do not undergo any transformation. They remain in the same condition in which they remained along with ordinary sand on the sea beach. No up-gradation or augmentation of their purity takes place. The chemical structure of the ore remained the same. The processes are not any special treatments which would take the ores out of the stage of plain and simple ores." Therefore it has to be found that the roasting of an ore, to obtain concentrate, does not amount to manufacture, especially roasting when such roasting would be a process by which impurities in the ore are removed and the recoverable content of metal as metal oxide is enhanced. Hence such process would not amount to process of manufacture under the excise law. In Hyderabad Industries case - 1999 (108) E.L.T....
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.... 70(7) Cobalt chromium tungsten magnesium and all other non-ferrous virgin metals not otherwise specified Free SECTION XXII (ARTICLES NOT OTHERWISE SPECIFIED) 87. All other articles not otherwise specified Revenue 60% ad valorem The department classified the Wolfram concentrate under the residuary Item 87. The department contended that "Ore" covered by Item 26 is confined to articles in as mined condition and concentration of ore is a manufacturing process and hence Tariff Item 26 does not cover concentrate. The Supreme Court held that Wolframite concentrate containing 65% of tungsten oxide is a tungsten ore, covered by description of the word "Ores" appearing in TI 26. It rejected the contention of the Revenue that concentrates will not fall within the scope of the word "ores" appearing in Item No. 26. Therefore, ore, is genus and 'Concentrate, is species. Therefore, under Central Excise exempting ore concentrates of ores would also be exempted. Sl. No. 10 of Notification No. 5/98-C.E. grants unconditional exemption to ores falling under Heading 26.01 to 26.17. Applying the decision of the Supreme Court in MMTC's case, the expression "ores" in ....