ORDER
I.J. Rao, Member (T)
1. The appellants imported Zinc Scrap which was Zinc Dross under Bill of Entry No. 181/79 cash No. 246, dated 3-6-1980. The goods were assessed to Customs duty under Heading 26.02/04 CTA. There is no dispute about the classification under Customs Tariff.
2. The appellants were asked to pay additional duty of Customs (Countervailing duty) under Tariff Item No. 26B(1)-CET. They paid the same under protest and applied for refund before the Assistant Collector. The Assistant Collector rejected the refund application on the ground that the benefit of Notification No. 168/69-C.E. and a departmental clarification relied upon by the appellants was not available to the imported goods as the notification and the clarification were subject to actual use of Zinc Dross within the factory of production. The appellants appear to have referred to a High Court judgment in connection with the refund application. The Assistant Collector noted that the judgment was in respect of Aluminium Dross and not in respect of Zinc Dross. Therefore, he rejected the claim. The Appellate Collector upheld the Orderer. Hence the present appeal.
2. Shri C.L. Beri, the learned Advocate for the appellants submitted that Item 26B(1) of Central Excise Tariff did not cover the imported goods as they were not “unwrought” appearing under this sub-heading applied to all the items mentioned therein. Therefore, as the dross was not unwrought, having been obtained during galvanising and not during manufacture, it was not liable to duty under 26B(1)-CET. Shri Beri further submitted that Zinc Dross was not goods and was therefore not liable for duty under Tariff Item 68-CET. The learned Advocate cited and relied on a judgment of the Tribunal in Indian Aluminium Company Limited and Anr. v. Collector of Central Excise, Bangalore reported in 1987 (31) E.L.T. 158 (Tribunal).
4. Shri 3. Gopinath, the learned SDR opposing the arguments stated that the imported goods consisted of Zinc Dross as stated by the appellants themselves in their memorandum of appeal. He also pointed out that the goods were assessed as Dross for the purpose of Basic Customs duty and this was not challenged by the appellants. Dross, according to the learned SDR, was impurities floating on melting metals. Dross contains traces of basic metal and Zinc Oxide and is used for retrieval of metal ore or for chemical purposes. Shri Gopinath submitted that Tariff Item 26B(1)-CET covered Zinc Dross specifically. Therefore, there is no question as to whether such dross arose during manufacture or at what stage it emanated. The learned SDR argued that the Tribunal’s Orderer in Indian Aluminium Company (supra) is not applicable to the facts of the present appeal as that judgment dealt with aluminium dross and not zinc dross. There was difference in the tariff pertaining to these two items. Shri Gopinath relied on an earlier Orderer of the Tribunal in Radhika India Private Limited v. Collector of Customs, Bombay (Orderer No. 619/1986, dated 8-7-1986) in support of his argument that once a tariff item is specified in the Tarrif it becomes liable to duty irrespective of other factors. He also relied on the judgment of the Supreme Court in 1985 (20) E.L.T. 222 – Khandelwal Metal & Engineering Works and Anr. v. Union of India and Ors. with special reference to para 10 thereof and submitted that this paragraph laid down the requisites for imposition of countervailing duty. Shri Gopinath answering the learned Advocate’s argument submitted that in Item 26B(1)-CET the word “unwrought” did not apply to all the items mentioned therein. He pointed out that cathodes and anodes mentioned under that sub-heading could not possibly be “unwrought” under any circumstances.
5. Shri Beri in a brief rejoinder submitted that the judgment of the Tribunal in Radhika India Pvt. Ltd. (supra) dealt with Zinc Ash and not Zinc Dross. Therefore, it is not relevant to the present proceedings.
6. We have considered the arguments of both sides. Before we proceed further we refer to the Board’s clarification given on 27-9-1965 according to which duty under Item 26B(1) was recoverable in the case of only those manufacturers who produce unwrought Zinc from ore by smelting. This was the clarification relied upon by the appellants before the Assistant Collector and referred to by the learned Advocate before us. We don’t accept that this advice governs the present importation. Apart from the averment by Shri Beri there is nothing to show that the Zinc Dross in question emanated during galvanising. In respect of imported goods such information is, normally, not available. Suffice to say there is no proof as to the origin of the Dross in question.
7. Shri Beri’s main argument is to the effect that all the items mentioned in sub-heading (2) of Heading 26B-CET are qualified by the word “unwrought”. We note the argument of Shri Gopinath that it is not so. We find logic and fitness in the learned SDR’s argument that in view of the presence of two items, namely, cathodes and anodes, in this heading it is clear that the word “unwrought” does not apply to all these items. Neither cathodes nor anodes can possibly be unwrought as stated by the learned SDR and not contraverted.
This sub-heading [26B(1)] can be understood to cover unwrought Zinc in any form and any or all the items enumerated therein irrespective of their condition. We come to this conclusion because quite visibly this sub-heading is an inclusive one. Any other interpretation, especially the one advocated by Shri Beri, if accepted, would render at least some of the items in the heading infructuous. Therefore, we hold that any of the items mentioned in the sub-heading including dross is liable to be covered and charged to Central Excise duty and irrespective of any other factors like being wrought or unwrought.
8. This finding would eliminate Shri Beri’s argument that there is no manufacture at all. Shri Beri, of course, advanced that argument only to resist classification under Tariff Item 68-CET. Once an item is included in any Tariff heading questions regarding its manufacture, origin etc. do not arise. This is what Supreme Court said in. paragraph 10 of their Orderer in Khandelwal Metal & Engineering Works (supra). We reproduce a part of the paragraph for the sake of clarity.
“The argument that the articles imported by the appellants have been reduced to scrap by reason of damage, wear and tear, is quite irrelevant. The true test is as to what is the description of the articles imported. If the articles are brass scrap, the limited inquiry which has to be made is whether brass scrap can come into being during the process of manufacture. If the answer is in the affirmative, the imported brass scrap will be chargeable to additional duty in accordance with Section 3(1) of the Tariff Act.”
9. In this case the only question that can be put, in the light of what the Supreme Court said, is whether Zinc Dross can come into existence during the process of manufacture. It is obvious that it can so come into existence. Besides, Item 26B(1)-CET specifically mentioned Dross under the heading Zinc. Therefore, we hold that additional duty of Customs was correctly levied under Heading 26B(1)-CET. All other arguments of both sides become irrelevant.
10. In this view we reject the appeal.