Judgment:
1. This is an appeal against the order of Collector of Customs (Appeals), Bombay dated 25-3-1986.
2. Learned counsel stated that the appellants had imported Zinc Ash arising out of smelting operations. Subsequent to its clearance they claimed re-assessment and refund in terms of Notification No.104/73-C.Ev dated 21-4-1973 as amended by Notification No. 32/81-C.E., dated 1-3-1981. The Assistant Collector rejected their claim on the ground that this notification is applicable only to indigenous products/goods. Further, the goods under reference had already been charged CVO in terms of Notification No. 238/78-Cus., dated 22-12-1978.
3. The Collector (Appeals) also rejected their refund claim on the same grounds. Hence the appeal.
4. It was their submission that it has already been held in the case of Kailash Paints & Chemicals v. Collector of Customs, Bombay reported in 1995 (78) E.L.T. 359 (Tribunal) that zinc ash imported by the appellants arisen during zinc smelting operations as evident from certificate of supplier and Sydney Chamber of Commerce was entitled to the benefit of exemption from CVD under Notification No. 104/73-C.E.Hence, the refund was admissible.
5. Learned DR stated that while Notification No. 104/73-C.E., dated 21-4-1973 exempts zinc ash arising from zinc smelting operations in zinc smelters from the whole of duty of excise, there is no evidence that such was the case in the present instance. That apart, the Notification No. 238/78-Cus., dated 22-12-1978 exempted zinc ash falling under Chapter 26 and the benefit thereof had already been granted. Hence, the original assessment was in order and no refund was due.
6. Learned counsel stated that they had produced the supplier's certificate declaring that zinc ash imported has arisen during smelting operations and a certificate from Sydney Chamber of Commerce to the same effect as evident from their letter dated 18th October, 1983.
8. We observe that both Notification No. 104/73-C.E., dated 21-4-1973 as amended by Notification No. 32/81-C.E., dated 1-3-1981 and Notification No. 238/78-Cus., dated 22-12-1978 exempt zinc ash; the first one from the whole of duty of excise leviable and the second one i.e. the customs notification only from a portion of additional duty leviable thereon under Section 3 of the Customs Tariff Act.
9. In the case of excise Notification No. 10/73-C.E., dated 21-4-1973, there is a condition to the effect that such zinc ash must arise in a zinc smelting operation. While there is no such condition under the customs Notification No. 238/78-Cus., dated 22-12-1978, the appellants had, at the time of filing of Bill of Entry for clearance of the imported goods claimed the benefit of the later and were granted the same. They had not produced at that time any evidence to the effect that zinc ash in question has arisen during zinc smelting operation.
Therefore, the goods had been rightly assessed to duty giving the benefit of Notification No. 238/78-Cus. only. Their subsequent refund claim is a post importation development and raises questions about the certificates said to have been produced subsequently at the refund stage.
10. Neither the copy of the bill of entry nor the copies of the certificates in question have been filed before us. They also do not appear to have been filed before Collector (Appeals). It is common knowledge that generally original case records are available to the Collector (Appeals) at the time of hearing or deciding the matter and the Collector (Appeals) has recorded in his order that the appellants had not fulfilled these conditions.
11. Learned counsel has drawn our attention to the appellants' letter dated 18th October, 1983 but inspite of the observations of the Collector (Appeals), has neither filed the copies of the certificates nor any evidence of receipt of the certificates by the A.C. and the order-in-original is silent on this point.
12. But, even if it is presumed that they had filed these documents before the Assistant Collector (Refunds), the point remains that at the original assessment stage, they had neither claimed the benefit of excise notification nor filed these certificates.
13. The learned counsel's submission that in terms of the ratio of the Tribunal's order in the case of Kailash Paints'& Chemicals v. Collector of Customs, Bombay reported in 1995 (78) E.L.T. 359, the benefit of Notification No. 104/73-C.E. was available to imported zinc ash if there was evidence that the conditions mentioned therein had been duly satisfied and the benefit of Notification 104/73-C.E. was not restricted to indigeneously produced zinc ash. However, as clear from the above discussion, they have not substantiated their claim, either at the first appellate or at the second appellate stage by production of the relevant documents. If they had sent the originals before the A.C. (Refunds) and the same were received by the Department, they should have been, in the normal course, in the Department's case records but the Collector (Appeals) did not find them and in any case, there is nothing to show that the appellants had asked for certified copies for the purpose of producing the same before the Tribunal.
14. In view of these facts, a question would however still arise as to whether the matter could be remanded in these circumstances.
15. However, there is one more point to be considered before a decision could be taken in this regard. The Collector (Appeals) has drawn attention to the fact that while Notification No. 238/ 78-Customs is a customs notification, the Notification No. 104/73-C.E. is an excise notification and the form would prevail; And, there is a lot of force in this reasoning inasmuch as the countervailing duty is really an additional duty of customs (although charged equal to excise duty) in terms of Section 3 of the Customs Tariff Act and the language of Notification No. 238/78-Cus. is such that while its ambit is large (as it does not prescribe any conditions as the ones in the case of 104/73-C.E.), it is more specific inasmuch as it applies to Zinc Ash imported into India from a portion of the additional duty of customs leviable thereon. It was this benefit which was claimed and allowed at the tine of clearance and rightly so. In other words, the original assessment was in order.
16. Further, in view of the fact that Notification No. 238/78-Cus. is a customs notification issued under Section 25 of the Customs Act 1962 specifically for the purposes of additional duty of customs, it must prevail over the central excise notification once this customs notification itself provides an effective rate of duty for the additional duty of customs (CVD) purposes.
17. In view of this position, the remand was not called for. Moreover, the original assessment was correct in the face of documents filed and benefit claimed and allowed at the time of clearance.