TMI Blog1988 (3) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal is being dealt with as an appeal by Revenue. 2. We heard Shri J. Gopinath, SDR for the revenue and Shri M.L. Lahoty, Advocate for the respondents. 3. Shri Gopinath submitted that Government s notice proposed to annul the Appellate order, dated 23-10-1980 and to uphold the validity of the countervailing duty already collected or to pass any other appropriate order by way of modification of the order in question. The learned SDR submitted that in view of the Hon ble Madras and Kerala High Courts orders in Mahavir Metal Works Ltd. v. Union of India [1987 (27} E.L.T. 24 (Madras)] and Goods Agro Chemicals v. Assistant Collector of Customs, Cochin [1987 (32) E.L.T. 565 (Kerala)], there was no justification for classification of the goods under Tariff Item 26A CET since the goods were imported prior to 1-3-1981 when the heading 26A was amended to specifically include scrap. He argued that prior to this date the goods were correctly classifiabfe under Tariff Item 68 CET for levy of Additional Duty. He submitted that the impugned notice was sufficiently widely worded so that he could argue for classification of the imported goods under Tariff ttem 68. 4. The learned SDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiable goods and have no specific description, that there is no transformation of the products into a new commodity having a distinct name, character and use and that whenever levy on such products is desired clear entries are provided in the tariff. No such entry was there at the relevant time, according to him. 7. The learned Advocate referred to two decisions one of the Kerala High Court in Goods Agro Chemicals (Supra) and one of the Madras High Court in Mahabir Metal Works (Supra). He submitted that these judgments unheld the view that the scrap and waste cannot be legitimately classified under Tariff Item 68 as there is no separate identity of the products and there is no proper description of the goods which is necessary for classification. 8. Shri Lahoty submitted that the scrap imported by the appellants consisted of scrap collected as a junk from worn out and damaged products and relied on the following jugments to argue that waste and rejects cannot be termed as finished excisable products: 1. Collector of Excise v. M.P. Veneer -1986 (23) E.L.T. 255 (Trib). 2. Indian Granite v. Collector of Central Excise -1987 (31) E.L.T. 847 (Trib). 3. Modella Textile Indus. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff Item 26A(1)(b) or under Tariff Item 68. He submitted that the burden of proof that excise duty was then levied on similar clearances of scrap from manufacturers in India is on the department and that such a burden has not been discharged. The learned Advocate concluded saying that if there is doubt the benefit must go to the assessee. 13. We have considered the arguments of both sides. We have respectfully and carefully perused the Supreme Court judgment in Khandelwal case (supra). The judgment relates the period after 1-3-1981 when Tariff Item 26A was amended to bring in, specifically, scrap. The present importation belonged to an earlier period. Therefore, as submitted by Shri Lahoty, we do not think that the ratio of the Supreme Court decision can be applied to the facts of the present case. The arguments of the learned SDR that though the period in Khandelwal was after 1-3-1981 the principle that scrap can be considered as dutiable goods was established by the judgment is not acceptable for the simple reason that once the tariff covers an article specifically, the only question that would arise is whether the goods in question would fall under such item or not. Their liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional duty under Tariff Item 68; Therefore, this judgment cannot help the respondent. In Mahavir Metal Works (supra) there was a concession from the appellants and this cannot therefore be taken as a precedent in favour of Revenue. 17. The respondents argument that their goods consist only of junk from worn and damaged products does not help them in view of what was said earlier to the effect that the scrap being import goods it is liable to duty. The six authorities cited by the learned Advocate do not, therefore, help them. The judgment in Garware Nylons (supra) and Darshan Hostery (supra) cited by the learned Advocate do not also help them for the same reason. The Board s circular and the opinion of the Ministry of Law are not statutory and are not binding. Anyway, they referred to Central Excise duty and what we are considering here is Additional duty of Customs. The argument that additional duty is not leviable if like goods are not manufactured in India has been effecting (effectively ?) disposed of by the Supreme Court judgment in Khandelwal (supra). Therefore, we do not go deeper into this. It is not necessary to go into the case law cited in this context as this judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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