ORDER
Shri S.L. Peeran
1. This is a revenue appeal against order in appeal No. 1/95 (M) (D) dated 12.1.1995 granting relief to the appellant on the removal of waste, parings, scrap of plastics following under chapter 39 of the Schedule of Central Excise Tariff Act 1985 granting benefit of Sl. No. 19 of the table to notification No. 14/92 CE dated 1.3.92, after following the ratio of the Tribunal judgement rendered in the case of Ajit Metal Industries Vs. CCE reported in 1993 (66) ELT 81 (T) wherein it has been held that the word “leviable” would mean the duty prescribed under the act read with any exemption notification in force and that the word ‘already paid’ could mean directed to be paid or ought to have been paid. Therefore, in the present case no additional duty of customs is leviable on polyethylene granules and as such the conditions stipulated under the notification No. 14/92 dated 1.3.92 that such specified goods should arise from duty paid goods to qualify for exemption is deemed to have been paid. In other words, he held that it would thus mean that the effective rate of duty for those goods is ‘NIL’ and the same has been discharged.
2. The revenue contends that ‘NIL’ rate of duty could be considered as duty payable in terms of the findings given by the Commissioner and challenged the correctness of the Tribunal’s judgement rendered in the case of M/s. Ajit Metal Industries (Supra).
3. Ld. DR submitted that this case has been referred before the Apex Court. He has no information about its final disposal or any stay in the matter.
4. Ld. Consultant Shri R. Parthasarathy contends that the Apex Court has already decided the issue that ‘NIL’ rate of duty is also appropriate duty as “already paid” as held in CCE, Patna Vs Usha Martin Industries Ltd. Therefore, the appeal no longer survives. He also relies on subsequent Tribunal judgement of SAIL Vs CCE Bhubaneswar reported in 2000 (36) RLT 259 on the same issue which relied CEGAT’S Order No. 1566/Cal/97 dt 19.11.97. and also the above cited Apex Court ruling. He therefore seeks for dismissal.
5. On a careful consideration, it is noticed that there is no infirmity in the order passed by the Commissioner (Appeals) in following the ratio of Tribunal Judgement rendered in the case M/s Ajit Metal Industries (Supra). The proposition laid down in the CEGAT’s case has since been decided by the Apex Court in the case of M/s Usha Martin Industries Ltd Vs CCE and has since been followed by the Tribunal in the case of SAIL. The issue is totally settled and the matter is no longer pending before the Apex Court for further determination. In that view of the matter, there is no merit in this appeal and hence the appeal is dismissed.
(Pronounced and dictated in open court)