Judgment:
1. Matter called. None for the respondents despite a notice of hearing sent to them. Therefore, we have heard the ld. JDR. Sh. S. Nunthuk in support of Revenues appeal.
2. Briefly stated the facts of the case are as follows : The appellant herein is a manufacturer of aluminium circles falling under Chapter Heading 76.06 of the CETA 1985. They filed a classification list in respect of circles having thickness above 0.56 m.m. but not above 2 m.m. and they claimed exemption under Notification 180/88-C.E., dated 13-5-1988.
3. The said Notification exempts such circles from levy of Central Excise duty if these are manufactured from the goods falling under Chapter 76 of the Schedule on which duty of excise leviable has already been paid. It is not disputed that the appellants are manufacturing aluminium circles from such old, broken, discarded and refuse articles of aluminium or aluminium utensils and other such articles which have not borne the burden of Central Excise duty and thus do not satisfy the conditions laid down in Explanation II attached to the said Notification. The Explanation reads as follows :- For the purpose of this Notification all stocks of aluminium and products thereof in the country, except such stocks as are clearly recognisable as being non-duty paid shall be deemed to be aluminium and products thereof on which the duty has already been paid." 4. The Assistant Collector on the view that the aluminium waste and scrap being exempted only in two specific circumstances mentioned at Sl. No. 3 & 4 of the Table to the said Notification 180/88 alone was exempted from duty and there was no exemption for other types of aluminium waste and scrap, held that the waste and scrap utilised by the respondents herein could not be treated as duty paid and they were clearly recognisable as non-duty paid. That being so the benefit of Notification 180/88-C.E., dated 13-5-1988 was not extended to the respondents herein.
5. However, on appeal the respondents before us succeeded before the lower appellate authority. The said authority has held that the goods charged to nil rate of duty cannot be regarded as non-duty paid. The said authority has also held that explanation to Notification 180/88 makes it very clear that all stocks of inputs and products thereof are to be deemed to be duty paid except those which are clearly recognisable as non-duty paid. Hence this appeal by the Revenue.
6. Ld. JDR Shri S. Nunthuk has drawn attention to the grounds of appeal in the appeal memo filed by the Revenue and submits that the lower appellate authority has looked at only one type of scrap, that is, scrap arising out of old broken/discarded utensils but the said authority has not taken into account as scrap of articles of aluminium which become non-usable and are sold as scrap which is not chargeable to duty at all. Therefore it cannot be said that such scrap has paid duty. Consequently the ld. JDR has argued that the Explanation to Notification would not apply in the present case inasmuch as such scrap is clearly recognisable as non-duty paid. He further points out that aluminium scrap is also dutiable at concessional rate of 30% under Notification No. 69/89 under which the Asstt. Collector originally granted the benefit in the Order-in-Original to the circles in question.
7. We have carefully considered the pleas advanced by the ld. JDR. We have also gone through the impugned order. We observe that the explanation to Notification 180/88 is that for the purpose of this Notification, all stocks of aluminium and products thereof in the country shall be deemed to be aluminium and products on which the duty has already been paid except such stocks as are clearly recognisable as being non duty paid. Aluminium waste and scrap being also a product of aluminium is also to be recognised as duty paid, in terms of this Explanation, unless an evidence is adduced by the Revenue that it is non-duty paid. Inference drawn by the ld. JDR on the basis of SI. No. 3 and 4 of the Table to the said Notification and also on the basis of SI. No. 2 of Table to Notification 69/89 cannot in any manner be said to be an evidence of the scrap being clearly recognisable as non-duty paid. Impugned Notification 180/88-C.E., in our view, is clearly available to the respondents herein. Hence we reject the appeal of Revenue.