AKAR TOOLS LTD. Vs. CCE

JUDGEMENT

(1.) IN this appeal at the instance of the assessee, challenge is against the order passed by Commissioner (Appeals) dated 17.1.97. Commissioner (Appeals) reversed the order passed by the Assistant Commissioner of Central Excise approving the classification list submitted by the appellant granting them the benefit of Notification No. 13/86 -Cus. Dated 9.2.86, as amended and read with Notification No. 83/90 -Cus. Dated 20.3.90. Commissioner (Appeals) took the view that two rates were applicable in respect of the goods concerned and therefore, by applying the provisions contained in Explanation to Section 3 of the Central Excise and Salt Act, 1944 the highest rate of duty at 50% ad valorem has to be applied. Aggrieved by the above the assessee has come up in appeal.

(2.) APPELLANT is a 100% Export Oriented Unit (EOU) manufacturing hand tools. They filed two classification lists effective for the periods from 22.2.94 and 1.3.94 before the Assistant Commissioner of Central Excise, Aurangabad classifying their products as waste and scrap of other alloy steel under sub -heading 7204.30 of Central Excise Tariff Act, 1985. The Assistant Commissioner approved the classification lists granting benefit of Notification No. 13/86 dated 9.2.86 as amended by Notification No. 83/90 dated 20.3.90. The rate of duty approved the Assistant Commissioner was 15% ad valorem. The above order was challenged by the Revenue before the Commissioner (Appeals) contending that Notification No. 62/94 is not applicable to 100% EOU in view of proviso to Section 5A of Central Excises and Salt Act, 1944, that Notification No. 101/93 -CE was applicable to 100% EOU and that at the relevant time there were two rates of Customs duty applicable i.e. normal rate 50% ad valorem and 10% ad valorem. When duties are leviable at two different rates, going by the Explanation under Section 3 of the Central Excise and Salt Act, 1944 highest of those rates shall be applicable. As mentioned earlier, the Commissioner (Appeals) allowed the appeal filed by the Revenue.

(3.) IT is contended on behalf of the appellant that the Commissioner (Appeals) has erred in denying the benefit of Customs Notification No. 83/90 dated 20.3.90 to waste and scrap manufactured and cleared to Domestic Tariff area by the appellant. According to the appellant, the view taken by the Commissioner (Appeals) is against the ratio of the decision of the Hon'ble Supreme Court in Goodyear India Ltd. v. CC, Bombay 1997(90) ELT 7(SC).