TMI Blog2017 (2) TMI 766X X X X Extracts X X X X X X X X Extracts X X X X ..... E/2178/10, E/158 & 1738/11 - A/85095-85098/17/EB - Dated:- 2-1-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Gajendra Jain, Advocate for Appellant/Respondent Shri N.N. Prabhudesai, Supdt. (A.R) for Respondent/Appellant Per : Raju M/s. Wasp Pumps Pvt. Ltd. are manufacturer of pumps of both dutiable and exempted varieties. For the manufacture of said pumps they cast certain articles from cast iron and from gun metal. Such castings are captively consumed for manufacture of pumps. 15 periodical show cause notices were issued to WPPL for the period April 1993 to December 1998 demanding duty on the castings of cast iron and gun metal manufactured and consumed captively for product ion of pumps which are exempted. It was sought to deny Notification No. 217/86-CE dt. 2.4.1986 and Notification No. 67/95-CE dt.67/95-CE. Another show cause notice was issued for the period January to March 1999 demanding duties on such castings. The Dy. Commissioner adjudicated the 15 show cause notices and classified the items made out of cast iron under Chapter Heading 73.25 and those manufactured out of gun metal under Heading 74.19 by a separate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to grant refund in respect of gun metal castings the WPPL filed a refund claim before Dy. Commissioner. He rejected the said claim on the ground that the said refund claim was pre-mature, in view of the above decision of Commissioner (Appeals) allowing the Revenue appeal against dropping of the 15 show cause notices. WPPL challenged the said order before Commissioner (Appeals), who rejected the appeal on the ground of limitation. Aggrieved by the said order M/s. WPPL are in appeal before Tribunal vide appeal No. E/1738/11. 2. Ld. Counsel for the WPPL argued that CBEC Circular No. 139/7/88-CEX dt. 28.7.1989 has clarified that the castings of iron and steel would be classifiable in the following manner. Further in view of the difference in headings the HSN explanatory Notes could not be simply directly invoked to interpret the CETA, 1985 as has been held by Gujarat High Court in the case of Ms. Echjay Industries. In view of this Board decided that no amendment or alteration is required to Board s F. No. 139/48/86-CX.4 dt. 18.2.87 clarifying the scope of castings under heading 7307 as covering all castings of iron steel which have not been subjected to any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of SSI exemption for these goods. He particularly stressed on the Explanation VI to the SSI exemption Notification No. 1/93-CE dt. 28.2.1993 which is reproduced below: Explanation VI - Where any specified goods (hereinafter referred to as inputs are used for further manufacture of specified goods within the factory of production of inputs, the clearances of such inputs for such use shall not be taken into account for the purposes of calculating the aggregate value of clearances under this notification. He argued that since the goods have been captively consumed and they are entitled to SSI exemption no demand can be made on them as the turn over of captivley consumed goods cannot be included in the aggregate value for the purpose of claiming benefit of Notification No. 1/93-CE. The Ld. Counsel further argued that the Order-in-Original clearly recognizes that they are entitled to SSI exemption. He argued that Commissioner (Appeals) has denied SSI exemption solely ground that they are not registered with Director of Industries. He argued that the said assertion is incorrect and they are infact registered with the Director of industries as can be seen from the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions. First we take the issue of the dutiability of the gun metal castings which is under dispute. There are two issues pertaining to the dispute. The first issue is if the gun metal castings are classifiable under chapter 74 or under chapter 84. The second issue is if the captively consumed castings are exempted under the SSI Notification no. 1/93-CE. We take up the issue of exemption under Notification No. 1/93-CE. first. We find that the said Notifications exempt all goods manufactured by an SSI registered with Director of industries as small scale industry in respect of specified goods. We find that heading 74.19 and the entire chapter 84, are covered in the said notification No. 1/93-CE. Thus any person eligible to avail notification can clear the goods without payment of duty under this notification subject to various value limits prescribed in the notification. It is un disputed that the goods in respect of which duty has been demanded are consumed captively. In this regards Explanation VI of the Notification become relevant the said explanation reads as follows: Explanation VI - Where any specified goods (hereinafter referred to as inputs are used for further ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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