TaxTMI 
TaxTMI 
2025 (11) TMI 369
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding 3403.00 are eligible for exemption under Notification bearing No. 120/84-CE dated May 11, 1984 ("the said Notification") as claimed in the classification list dated June 11, 1990. 1.1. The consequential demand for duty of Rs.2,62,29,188 for the period up to February 28, 1994 and equal penalty under rule 173Q(1) of the Central Excise Rules, 1944 is the subject matter of Excise Appeal No. 716 of 2011. 1.2. As both the appeals are dealing with the same issue, they are taken up together for decision by a common order. 2. In so far as the claim for exemption under Notification bearing No. 120/84-CE dated May 11, 1984 is concerned, this is the third round of proceedings. The decision of the Tribunal in the first round is of great significance. The material facts relating to the earlier rounds are briefly stated hereinafter. 2.1. The Assistant Collector of Central Excise by an order dated March 3, 1993 held that exemption under the said Notification was not admissible in respect of lubricating oils and greases falling under sub-heading 3403.00. The said order was upheld on first appeal by an order dated December 14, 1993. The said appellate order was made subject matter o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the period up to February 28, 1994 and equal penalty under rule 173Q(1) of the Central Excise Rules, 1944. 3.3. On appeal against the Deputy Commissioner's order dated March 11, 2011, the Commissioner (Appeals), by an order dated February 27, 2017, observed that the said notification did not specify any particular class of goods with respect to their central excise tariff nomenclature or by their chemical/physical properties save that the goods under exemption should have mineral oil as one of the components. The Commissioner (Appeals) observed that the order dated September 2, 2004 passed by this Tribunal, in terms of which evidence placed by both the sides was required to be examined, had not been carried out. The matter was thus remitted back to the adjudicating authority to reconsider the issues afresh. 4. The revenue preferred Appeal No. E/75909/2017 in respect of the said appellate order dated February 27, 2017 on the ground that the Commissioner (Appeals) had no power to remand. The said appeal relating to exemption claim affecting rate of duty was required to be decided by the Division Bench of the Tribunal. However, the matter was listed before the Single Me....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ribunal has decided the matter going by the plain terms of the exemption notification. In this connection, paragraph 7 of the said order dated September 2, 2004 is set out hereinbelow for ready reference. "It is clear that the Notification has incorporated its own definition of blended or compounded lubricating oils and greases by describing them as that is to say lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients. The question of eligibility of the goods for the exemption under Notification 120/84 could be resolved by reaching a findings as to whether they satisfy the definition contained in the notification and whether the goods are ordinarily used as lubricants. This can only be decided after adducing evidences from both the sides. Therefore, we set aside the impugned order and remand the matter to the adjudicating authority with a direction that the finding of this issue is to be reached after considering the evidences placed by both the sides." (emphasis added) 5.1. He submits that the principle of interpretation followed by the Tribunal is completely in accord with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erals and whether they will fall under heading 27.10 or heading 34.03 will depend upon the weight of the constituent petroleum oils or oils obtained from bituminous minerals. (b) The said Notification does not mention any heading or sub-heading and does not stipulate that the goods in respect of which exemption is granted should contain any particular quantity by weight of petroleum oils or oils obtained from bituminous minerals. Exemption is granted in respect of "lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients". If it was intended that only goods falling under heading 27.10 were to be granted exemption, the said Notification would have so indicated either by mentioning heading 27.10 or the composition in terms of percentage by weight of constituent oils as 70% or more. However, the said Notification contains no such stipulation. The definition in the said Notification of the goods in respect of which exemption is granted being such, the Tribunal was pleased to hold that eligibility for the exemption was to be resolved by reaching a finding as to whether the appellant's....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Chemist's jurisdiction to interpret the said Notification or to determine the scope of the exemption granted, as held by the Tribunal in the case of Magic Fasteners Pvt. Ltd. v. Commissioner [2014 (302) ELT 470 (Tri. Del.)]. Even otherwise, the opinion of the Chief Chemist is contrary to the decision dated September 2, 2004 of the Tribunal. (d) Reliance has also been placed on the decision rendered in the case of Bharat Petroleum Corporation Ltd. v. Commissioner of C.Ex., Kolkata-I [2003 (154) E.L.T. 698 (Tri. - Kol.)] (e) It is further submitted that identical materials manufactured by other manufacturers and supplied to Indian Railways have been allowed the exemption under the said Notification and no different view ought to have been taken in the appellant's case. 5.4. In view of the above submissions, the appellant have contended that in the facts and circumstances of the instant case, they have established that the subject goods falling under sub-heading 3403.00 satisfy the definition contained in the said Notification and are ordinarily used as lubricants and thus eligible for the exemption. 6. The Ld. Authorized Representative representing the Re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... oils and greases. In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts blended or compounded lubricating oils and greases, that is to say, lubricating oils and greases obtained by straight blending of mineral oils or by blending or compounding of mineral oils with any other ingredients, from the whole of the duty of excise leviable thereon under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944): Provided that such blended or compounded lubricating oils and greases are produced out of such mineral oils on which appropriate duty of excise leviable under section 3 of the Central Excises and Salt Act, 1944 (1 of 1944) or the additional duty of Customs leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), has been paid. Explanation. For the purposes of this notification, all stocks of mineral oils obtained by a manufacturer for producing lubricating oil and greases, except such stocks as are clearly recognisable as being non-duty paid, shall be deemed to have discharged appropriate duty of excise leviable under section 3 of the Central Excises and Salt Act,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... case of Bharat Petroleum Corporation Ltd. v. Commissioner of C.Ex., Kolkata-I [2003 (154) E.L.T. 698 (Tri. - Kolkata)], wherein this Tribunal allowed the benefit of Notification No. 120/84-C.E. to the assessee. For ease of reference, the relevant paragraph of the said order is reproduced below: - "5. It is apparent from the wordings of the Notification that it exempts blended or compounded lubricating oils obtained by straight blending of duty paid mineral oils or by blending or compounding of mineral oils with any other ingredients. The Appellants have claimed that the impugned products are blended and compounded lubricating oils and as such are exempted from payment of duty in terms of the Notification. It has been mentioned by them that all the products are manufactured by them by blending duty paid base mineral oils. The Revenue has not rebutted the process of blending of base mineral oils for getting the impugned products. The Revenue's only contention is that as per sub-heading 2710.60 Lubricating oil is that oil which is ordinarily used for lubrication, excluding any hydrocarbon oil which has its flash point below 94°C and since the impugned products were sold ....