Customs, Excise and Gold Tribunal - Tamil Nadu
Commissioner Of C. Ex. vs Andhra Cements Co. Ltd. on 15 November, 2000
Equivalent citations: 2001(132)ELT712(TRI-CHENNAI)
ORDER S.L. Peeran, Member (J)
1. This is a Revenue appeal against the Order-in-Original No. 6/91, dated 29-1-1991 passed by Additional Collector dropping the proceedings initiated by show cause notice dated 6-1-1989 calling upon the assessee to show cause as to why the duty of Rs. 79,515.90 should not be demanded for Ammonium Nitrate Fuel Oil (ANFO) produced and consumed by them without payment of duty due thereon during the period from 1-7-1988 to 30-11-1988 under Rule 9(2) of Central Excise Rules read with Section 11A of Central Excise Act and as to why penalty should not be imposed under the said provisions read with Rule 173Q of Central Excise Rules. The Additional Collector in the Order-in-original accepted the party's contention that ANFO is a simple mixture of Ammonium Nitrate and diesel oil and no new product emerges for excisability purpose and on that reasoning dropped the procedings. The Revenue contends that ANFO are goods and the same is leviable to duty under Subheading 3602.00 and by this appeal seeks for confirmation of demand up to 26-7-1988 as thereafter Notification No. 234/88, dated 27-7-1988 was passed granting exemption to ANFO manufactured in the mines.
2. Ld. SDR relies on the following Tribunal judgments wherein it has been clearly held that ANFO are goods and leviable to duty :-
(a) Singareni Collieries Co. Ltd. v. CCE 1988 (37) E.L.T. 361
(b) Associated Cement Co. Ltd. v. CCE 1996 (87) E.L.T. 129.
He contends that the matter has to go back to the original authority for computing duty and also for fixing the penalty in the matter as the show cause notice clearly alleged that clearances were clandestine removals and the appellants had failed to file the classification list and bring to the notice of the department about the manufacture of the said items.
3. Respondents are not present despite several notices issued to them. Therefore, the matter has been taken up for consideration on merits.
4. We have gone through the judgments cited by ld. SDR and notice that the issue is no longer res integra. The Tribunal in the case of Singareni Collieries Co. Ltd. have clearly held after detailed consideration that the item in question are goods and leviable to duty. The said judgment has been reconsidered and applied in Associated Cement Co. Ltd. (supra). Therefore, in term of both the judgments, the item was dutiable and the assessee was required to have taken out licence and filed classification list and paid duty thereof. As the assessee has not followed the procedure and not paid duty thereon, therefore demands raised in terms of show cause notice is sustainable. However, in the appeal, the Revenue contends that Notification No. 234/88 was passed granting exemption to the item from 26-7-1988, therefore, the aspect pertaining to the computation of duty and levy of penalty required to be reworked out including the applicability of Notification. Therefore, for this purpose, while allowing the prayer of the Revenue to consider the item as goods in the light of the judgments cited, we remand the matter to the original authority for computing the duty and for fixing the penalty in terms of provisions of law narrated in the show cause notice after granting an opportunity of hearing to the assessee. Appeal is allowed by way of remand.