ORDER
Shri G.A. Brahma Deva
1. Arguing for the assessee Shri A.K.J. Nambiar learned counsel submitted that whether crude sulphur in a granular form is exempted or not from additional of duty of customs in terms of Notification No 7/92 dated 1.3.92 is an issue to be considered in this case. He submitted that Notification No 7/92 CE dated 1.3.92 exempts sulphur powder from the whole of the Central Excise duty leviable therein. He contended that sulphur in granular form is also a powder. Sufficient technical literature was placed before the authorities below to substantiate the claim of the assessee that crude sulphur in granular form is also a powder. This important piece of evidence has not been considered by the authorities below while arriving at the conclusion. Both the authorities below have taken the view that Notification No 7/92 exempts only sulphur powder and not sulphur in granular form. He also submitted that subsequent notification 94/93 CE dated 7/93 had substituted the word ‘sulphur’ for the words ‘sulphur powder’ in Notification 7/92.
2. He submitted that the distinction between the powder form and granular form of sulphur is an artificial one unknown in the commercial circles. Granulation is nothing but enlargement process and sulphur powder when enlarged takes the form of granules/particles.
3. The wordings of the amended Notification No 94/93 dated 7.9.93, which amended earlier notification 7/92, clearly indicates the intention of the Govt was to clarify the scope of the earlier Notification in including all forms of crude sulphur. The amended notification substitutes the word sulphur for the word sulphur powder appearing in the earlier notification. Hence amended notification was only clarificatory in nature and hence restrospective in operation. In support of his contention, he referred to the decision of the Tribunal in the case of Johnson & Johnson Ltd Vs Collector of Central Excise Bombay-3 reported in 1994 (71) ELT 435. Particularly he referred to the relevant portion of para-6 of the said order which reads as under:
“In the amended notification since the expression used was ‘miconazol nitrate’ shall be substituted and in the subsequent clarification issued by the Government of India that provisional assessment may be finalized as per the guidelines of Notification No 455/86, we are of the view that amended Notification No 455/86 is clarificatory in nature and intention of the Govt. of India was to grant exemption from the inception of Notification No. 122/86, dated 1.3.1986. In the facts and circumstances of the case and taking into consideration of the nature of amending notification, we hold that Notification No. 455/86 is only clarificatory. Accordingly, the appellants are justified in claiming the exemption in respect of the product in question in terms of Notification No. 122/86 since its inception. In the view we have taken, we do not feel it necessary to go into other issued raised by both sides. Thus, the appeal is allowed.”
4. He also referred to the decision of the Supreme Court in the case of Johnson & Johnson Ltd., vs Commissioner of Central Excise Aurangabad reported in 1997 (92) ELT 23 wherein it was observed that:
“We are of the opinion that the intention of the authorities was to grant exemption to certain life-saving and sight saving articles manufactured in the country and once this intention is clear from the subsequent notification issued under Section 5-A of the Act 1995 we do not see any reason why we should take a narrow view confining the two items purchased by the appellants in the entry 3005.90 rather than place them in the wider connotation of surgical appliances in entry 90.18 of chapter 90”
5. Smt Radha Arun appearing for the Revenue submitted that sulphur in granular form cannot be considered to be a powder to exempt in terms of Notification 7/92 CE dated 1.3.92. She submitted that Notification has to be considered strictly and since the Notification exempts only sulphur powder, that exemption cannot be extended to sulphur in granular form. She also submitted that the decision referred to by the Counsel in the case of Johnson & johnson Ltd., (1994 (71) ELT 435 is not applicable to the facts of this case since the circular was issued by the Board clarifying the position in that case.
6. We have carefully considered the matter. We find that there is a lot of force in the arguments advanced on behalf of the assessee that crude sulphur in granular form is also a form of powder. Neither the word granular or powder as such has been defined in the statute. As can be seen from the dictionary meaning (the Concise Oxford Disctionary) powder refers to a mass of dry particles or granules. Sufficient technical literature has also been placed by the assessee to substantiate the claim that granulation is nothing but enlargement process and sulphur powder when enlarged takes the form of granules. This piece of evidence has been rejected by the Revenue without adducing any evidence to show that granular form cannot be considered as a powder form and two are commercially separate.
7. On legal position also we find force in the arguments advanced on behalf of the assessee that since the subsequent notification substitutes the word sulphur for the word sulphur powder in Notification-7/ 92. Subsequent Notification should be read as a clarificatory in nature with reference to the earlier notification as it was held by the Tribunal in the case of Johnson & Johnson (supra). In the similar circumstances and in view of the observation made by the Supreme Court that in interpreting earlier notification a broader view will be more appropriate to gather the intention of the authorities in interpreting the statute. In view of our fore-going conclusion we do not find any justification to deny the benefit of exemption as claimed by the assessee in terms of Notification of 7/92 and accordingly we set aside the impugned order allowing the appeal with consequential relief if any.
(Pronounced in open court on 17/5/2001)