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TMI Blog1997 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... sified their products as `copper wire rods rolled out of casted copper wire bars' under erstwhile Tariff Item 26A(3)(i) and claimed exemption from payment of excise duty under Notification No. 174/84 contending that casted copper wire bars which were manufactured by them from waste and scrap of copper and copper wire rods come under ISI classification sub-heading No. 3.2 as wrought form of copper. Since both the inputs and output fell under the same tariff heading they claimed that no duty was leviable on such copper rods. By an other C.L. (No. 9/84-85) also with effect from 1-8-1984, they classified their products as "waste or scrap of copper arising during the manufacture of copper wire rods from duty paid copper wire bars" under Tariff I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been taken under Rule 56A. Since the copper wire rods were made of copper products, namely, casted copper wire bars, proof of duty having been paid on such casted copper wire bars had to be produced by the assessee. Since no such proof had been produced, the first condition of Notification No. 174/84 had not been satisfied. As regards waste and scrap of copper, the Assistant Collector rejected the appellants' claim for exemption under Notification No. 33/81 as the said Notification was no more in force when the classification list effective from 1-3-1984 was filed and Notification No. 172/84 was operative. Notification No. 172/84 clearly stipulated that duty should have been paid on inputs, namely, copper wire bars. The appellants' conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise ........ has already been paid' occurring in the proviso to Notification No. 174/84 should be given the same meaning as given in some earlier decision of the Tribunal viz., the case of IEL Ltd. v. C.C.E., Bombay reported in 1988 (35) E.L.T. 142 and the Patna High Court decision in Tata Yodogawa Ltd. v. Union of India reported in 1987 (32) E.L.T. 521 wherein it had been held that use of scrap cleared at nil rate of duty did not disentitle the goods from claim of exemption and that "appropriate payment of duty" should be taken to mean duty that ought to have been paid or contracted to have been paid. Since such duty, in terms of exemption Notification No. 174/84 is nil, the goods cleared at nil rate of duty should be taken to be goods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat some amount of duty should have been actually `paid'. We find force in the appellants' contention. Though the said Trade notice relates to steel melting scrap, we feel that the principle clarified in the Trade Notice viz., assessment includes `Nil' duty assessment should have been accepted by the Asstt. Collector having regard to the fact that he is subject to the jurisdiction of the same Collectorate. 9A. As regards eligibility for exemption of waste and scrap of copper under Notification 172/84 it is seen that scrap of copper is clearly covered by said notification. It is not in dispute that scrap arises in the process carried out in the factory of the appellants. There is also no dispute about the fact that excise duty has alre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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