TMI Blog2008 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... olved in these appeals is as to whether the scrap imported by the appellants is chargeable to 'NIL' rate of additional customs duty under Section 3 of the Customs Tariff Act 1975. 3. The facts of the case, in brief, are enumerated hereinbelow. 4. In the year 1996-97, the appellants imported copper/brass waste and scrap for use in the manufacture of handicrafts and filed bills of entry and claimed benefit under Exemption Notification No.8/96-CE dated 23 rd July 1996. In order to avoid unnecessary delay and demurrage, the appellants paid the duty under protest and filed refund claim before the Asst. Commissioner, ICD, Tughlakabad. 5. Department questioned the refund claim of the appellants by issuing notice dated 10 th September 1998 to show cause as to why their refund claim be not rejected as the Tariff Heading 7404.10 would be applicable to the waste which was generated during the process of production only in the factory and then used in the same factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts and hence, the imported goods fall outside the purview of exemption under Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." 8. In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act 1944, the Central Government, in public interest, exempted goods specified in column (3) of the Table annexed to the notification and falling within the Chapter, Heading No. or sub-heading No. of the Schedule to the Central Excise Tariff Act, 1985, specified in the corresponding entry in column (2) of the said Table, from so much of the duty of excise leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table, subject to the conditions, if any, laid down in the corresponding entry in column (5) thereof or as mentioned in the said column (5) and specified below the said Table. Entry 74.04 in the said Table reads thus : "Refe- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties have been heard. 13. Admitted facts are that the appellants had imported copper/brass waste and/or scrap. They had used the imported waste and scrap in the manufacture of handicrafts; had paid duty on the imported copper waste and scrap. The only dispute is whether they are required to pay countervailing duty under Section 3(1) of the Customs Tariff Act. 14. The explanation to the sub-section (1) of Section 3 clarifies the expression, "the excise duty for the time being leviable on a like article if produced or manufactured in India" used in the said Section that excise duty which would be leviable on a like article if produced or manufactured in India. It further clarifies that if a like article is not so produced or manufactured which in turn clarifies that for the purpose of levy of additional duty actual production or manufacture of like article is not necessary. 15. Entry 74.04 can be divided into three parts, viz., (i) copper waste and scrap; (ii) used within the factory of production; and (iii) for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts. The sum and substance of the entry, in our opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held to be wrong. It was further held that the benefit of the exemption or concession should be granted wherever the intended use of the material can be established by the importer or by other evidence. In the present case, it is a matter of fact that duty was paid by the appellant at the time of import of waste or scrap. Mere fact that the goods were imported would not make any difference. The intention behind the grant of exemption under the notification was to prevent the duty being paid at two stages. In the present case, an amount equivalent to the excise duty had been paid by the appellants at the time of import on the waste and scrap. If the benefit of the notification is not given to the appellants it would mean double payment of duty which goes contrary to the law laid down by the decision of the Constitution Bench of this Court in the case of Hyderabad Industries Ltd. (supra). This Court in the said judgment held as under :"10. Section 3(1) of the Customs Tariff Act, 1975 provides for levy of an additional duty. The duty is, in other words, in addition to the customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Customs Tariff A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
