{"id":169902,"date":"1970-01-01T00:00:00","date_gmt":"1969-12-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/atma-steel-private-limited-vs-collector-of-central-excise"},"modified":"2016-03-30T23:17:04","modified_gmt":"2016-03-30T17:47:04","slug":"atma-steel-private-limited-vs-collector-of-central-excise","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/atma-steel-private-limited-vs-collector-of-central-excise","title":{"rendered":"Atma Steel Private Limited vs Collector Of Central Excise"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Atma Steel Private Limited vs Collector Of Central Excise<\/div>\n
Equivalent citations: 1988 (36) ELT 129 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 H.R. Syiem, Member (T)<\/p>\n
1. This appeal dated 21st October, 1982 filed by M\/s. Atma Steel Limited, Derabassi, is against the imposition of penalty, confiscation of goods and demand of duty by the Collector of Central Excise, Chandigarh in his order No. 11\/82, dated 24-7- (no year is given). These actions of the Collector were taken because he held that Atma Steel had removed cold rolled steel strips without payment of duty and had failed to enter quantities of cold-rolled steel strips in Central Excise records.\n<\/p>\n
2.   M\/s.  Atma Steel  received  hot-rolled  strips  and  subjected  them to cold rolling. The Central Excise said that this cold-rolled steel strips obtained from  the hot-rolled  steel strips  the leviable to central excise duty under Central Excise Tariff Item 26AA(iii). This took place in 1981 then sub-item (iii)of Central Excise  Tariff Item 26AA for Iron or steel products read steel strips was leviable to central excise duty under Central Excise Tariff Item 26AA(iii). This took place in 1981 when sub-item (iii) of Central Excise Tariff Item 26AA for iron or steel products read : Flats, Skelp  and  Strips.  The  cold-rolled  strips  were  produced by  Atma Steel from  hot-roiled strip on which duty under the same item  and sub-item had been  paid.  This payment  of  “strip”  duty on the hot-rolled strip is corroborated  by  para  22  of  the  Collector’s  order.  The  manufacturer’s argument mainly was that having paid “strip” duty, the strip cannot be charged the  same duty  again, even  when it came out as a cold-rolled strip from  Atma Steel Rolling Mill. This is a correct reasoning and the Collector was wrong to hold the cold-rolled strip liable to duty under Item 26AA(iii).\n<\/p>\n
3.   His reasons for doing so were :\n<\/p>\n
(I)   Iron or steel products flats, skelp and strips fall under sub-item (iii) of Tariff  Item No.  26AA and the statutory rate of basic duty therefore laid down in the First Schedule to the Central Excises and Salt Act, 1944 is Rs. 1350\/- per metric tonne. In addition these are liable to special excise duty @ 10% of the basic effective excise duty leviable thereon.\n<\/p>\n
(II)  By issue of  a Notification  No.  55\/80, dated  13-5-1980 (as amended & in force during the material period) issued under Rule 8 of the Central Excise Rules, 1944 the Central Government had granted partial exemption of duty on steel strips from so much of the basic excise  duty  leviable  thereon  as was in  excess of  the following :-\n<\/p>\n
   (i) Galvanised strips                           Rs. 850\/- per M.T.\n(ii) Other than galvanised strips :-\n     (a) Strips of Iron & Steel not below \n         5 mm but not exceeding 10 mm \n         in thickness and of not less than\n         600 mm in width.                        Rs. 350\/- per M.T.\n     (b) Other cold-rolled strips                Rs. 650\/- per M.T.\n     (c) Other hot-rolled strips                 Rs. 450\/- per M.T.\n \n\nThe said notification also granted certain further reduction in duty depending upon nature of raw material used, method of manufacture etc. in the situations mentioned in various provisos thereof.\n \n\n(III) Hot-rolled  strips  and  cold-rolled  strips  are  two  different commodities known to the market in their use and value.\n \n\n<\/pre>\n
(IV) It  is  the  well-established  practice  to  collect  differential duty  when  “Other  cold-rolled  strips”  are  produced  out  of  ‘Other hot-rolled  strips’  on  which  basic  duty  at  the  appropriate effective rate has already been paid. This practice is in line with the thinking that  any  transformation  which  results  in  bringing  into  existence a new and  different article or goods known to the market as different amounts  to  ‘manufacture’,   attracting levy  of  central  excise  duty under Section 3 of   the Central Excises & Salt Act,  1944 and what makes distinction  for  the  purpose  of  excise  tax  is  the nature  of commodity”  and hot the item or sub-item which are just like species and genre.\n<\/p>\n
4.   It  is impossible  to see the    televance of reason I as a premise to the conclusion the “strip” duty is leviable on the cold-rolled strip rolled from  hot-rolled  strip. That flats, skelps  and strips fell under  sub-item (iii) of Item 26AA, that they were subject to basic duty of- Rs. 13501-per tonne, and that in addition, they were liable to special excise duty at 10% of the basic duty have nothing whatsoever to do with the liability of the cold-rolled strip to duty.\n<\/p>\n
5.   Reason  II  is  equally  misleading.  Notification  No.  55\/80-C.E. merely exempts a number of goods and in the exemptions hot-rolled strip pay a lower duty (Rs. 450\/- per tonne) than cold-rolled strip (Rs. 650\/-per tonne). It means nothing more than this. The certain further reduction ; on duty  stipulated  in  the  various provisos  of the  notification  that the ! Collector  speaks  about  has  no  effect  on  duty  of  the cold-rolled  strip produced  by  Atma  Steel,  nor  does  the  Collector  provide  the  smallest clue as to how  the provisos qualify    or regulate that duty. He does not seem to have noticed that the notification lists four kinds of strips under the  head  “Strips”  (a) Galvanised  strips  (b)  strips not below  5  mm  but not above  10 mm thick and not less than 600 mm wide  (c) other cold-rolled strip and finally (d) other hot-rolled strips. It escapes his notice that  the  notification  categorises  hot-rolled  strip  and  cold-rolled  strip under “6 Strips”, meaning thereby that both are strips. This reason supports the factory more than it does the department’s case; but whatever it does it is no basis for levying duty on this cold-rolled strip.\n<\/p>\n
6.   As  for  reason  III,  to  be  sure,  hot-rolled  strips  is  a different commodity from cold-rolled strip. But different  though  they are only the  law  decides dutiability,  not the  market.  The  law places all strips hot-roiled,  cold-rolled,  galvanised,  painted  etc.  under  the  head  strips, and requires one duty to be paid. Therefore whether the market regards the two kinds of strips as different commodities or as similar commodities will make no difference if the law, requires that they should pay separate duties under separate heads of the tariff. Supposing we found that the market regarded hot-rolled strip as being the same as cold-rolled strip, but the tariff provided different heads\/sub-heads and duties for them we will have no choice but to charge duty on each separately, ignoring what the market thinks. Hence the fact that the market knows the two strips as different commodities will not make the cold-rolled strip liable to the same duty it had paid as a hot-rolled strip, a second time.\n<\/p>\n
7.   Reason IV says it is a well established practice- to collect duty on  “other cold-rolled  strips”  produced  out  of  “other  hot-rolled  strips”. The  reason  is  ostensibly  based  on  the  theory  of  “transformation”  and “what makes distinction for the purpose of excise tax is the nature of commodity and not the item or sub-item which are just like species and genre” (Sic) [The word they want is genus; genre is out of place]. Is there a threat here that the Collectorate will not yield to the law of items and sub-items, but will decide according to their own subjective “nature of commodity” that they will deploy in assessment? And the “well established practice” is without doubt a wrong practice and is clearly based on the “nature of commodity” doctrine, because it does not accord with the law; indeed it conflicts with it. There is recognition of this in today’s central  excise  tariff  – galvanised  strips hot-rolled  strips and cold-rolled strips are in separate and distinct items or sub-items and so can be taxed separately; one duty, after another had been paid. What would the central excise do now when a duty paid strips is galvanised? A galvanised strip is  not  known  as  a  different  commodity  for  an  ungalvanised  strip,  and galvanization does not change the strip into a new product. But the tariff lay  down  a  duty  separately  for  galvanised strip which  means  the  law requires duty  to be paid on the galvanized strip even if the strip from which it is produced had  paid duty as a cold-rolled strip. The market practice will not save the galvanized article – the law might.\n<\/p>\n
8.   The  Collector  observed  that  the  assessees  had  “on  their  own free volition chosen to take proforma credit under Rule 56A of Central Excise Rules thus “such strips stood denuded of their duty paid character and could no longer be treated as duty paid”. This is a half-truth if that, -the  assessees  had  to  take  56A  credit only because  the central  excise demanded duty on the cold-rolled strip. The “volition” was not their own, nor was it free – it was forced on them by the department and so cannot even qualify as a volition; it was merely a reaction. However that may be, the department catches the assessee in a vice  – he has taken 56A credit so his hot-rolled strip is not duty paid anymore, and so his claim that  the  cold-rolled  strip  should  not  be  subjected  to  strip  duty again has been confounded. There is an admission here, though as unconscious one, that but for the hot-rolled strip becoming non-duty paid by reason of 56A credit, the cold-rolled strip would have been not chargeable under Item 26AA(iii) to strip duty. The last sentence in paragraph  18 supports this. It says :-\n<\/p>\n
 “As such the assessee was liable to pay Central Excise duty on cold rolled steel strips produced out of hot rolled steel strips, which cannot be treated as duty-paid after proforma credit of duty has been taken in RG 23 register”.\n<\/p>\n
9.   The tariff classes all strips in one category. Therefore, all strips whether hot-roiled or cold-roHed are, for purposes of law, one commodity subject  to  duty  under  one  head  or  sub-head.  Exemptions  providing  one concession  to  hot-rolled  strips  and  another  to cold-rolled  strips do not alter this fundamental basis. Once a strips has paid the “strip” duty under sub-item  (iii) of  Item 26AA it will never have to pay that duty agair whatever shape or form  it is changed into,   as long as it remains in the same “strip” category of the tariff and no process and no alteration in its nature or name or any other thing can attract to it the duty of a strip. That was the law at the relevant time; (it is no longer the law now). The action of the Collectorate to levy on the cold-rolled strip the duty under sub-item (iii) of Item 26AA which it had once paid (as a hot-rolled strip) is not sanctioned by the law and is void. The Collector’s order is quashed.\n<\/p>\n
10.  All  confiscations  are  vacated  and  all  moneys  paid  as a result of  such  confiscations  shall  be  returned  immediately.  All  moneys  paid as penalties  and  as duty as  a result of  the Collector’s order shall be returned to M\/s. Atma Steel without any delay.\n<\/p>\n
11.  Needless  to  say,  the  two  parties  shall  take  and  complete  all actions  that are  natural  consequencies  of  this  order  with  all  speed and due despatch.\n<\/p>\n
12.  I  agree.  I  would  only  like  to  add  that  in  his  arguments,  Shri M.  Chandersekharan,  Advocate  relied  on  a  decision  of  the  Tribunal  in  Swastik Packaging, Bombay v.  Collector of  Central  Excise,  Bombay Order  No.<\/a>  73\/85-B1  dated  30th  September,  1985.  In  this case,  it was held that printing of  duty paid foil  did not call for duty liability again. Besides, he also relied on the Supreme Court decision in  K.K. Steel Limited v. Union of India<\/a> –  1978 ELT 3-355. Smt. V. Zutshi, the learned Sr.  Departmental  Representative  strongly  relied  on  an  observation  in a decision of the Supreme Court in   Empire Industries Ltd. and Ors. v. Union of India and Ors. – 1985  (20)  ELT  179 (S.C.) to the following effect :\n<\/p>\n
 “The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having? its own character, use and name, whether be it the result of one process or several processes ‘manufacture’ takes place and liability to duty is attracted”.\n<\/p>\n
13.  The  Tribunal  decision  on  which  Smt.  Zutshi  relied is Veekeyam Industries v. Collector of Central Excise, Chandigarh<\/a> – 1985 (21) ELT 596 Tribunal. In this decision, it was held that conversion of round bars into bright bars which as distincts name, character and use constituted manufacture.  As  far  Smt.  Zutshi’s  reliance  on  the  two decisions of  S.C.,  it is sufficient to say that after the process of cold rolling, steel strips have remained  only  steel  strips,  though  hot  rolled.  There  has  thus  been  no change in use even though character and use may have changed. In view of  this,  the  two  decisions  would  not  apply  to  the  present  case.  The precise  effect  of  the Supreme  Court decision  in  Empire  Industries case would  be  examined  later  on  some  other  case.  In  this  connection,  it may  also  be  observed  that  the  Supreme  Court  in  Indian  Aluminium Cables  Ltd.  v.  Union  of  India  and  Others<\/a>  –  1985  (21)  ELT  (3)  (S.C.). held  that  the  process  of  manufacture  of  product and  the  end  use  to which it is put, cannot necessarily be determinative of the classification of  that product  under  a  fiscal  schedule  like  the Central  Excise Tariff, what is more important is whether  the broad descrition of  the articles fix in with the expression used in the tariff. In the present case so already succinctly  pointed  out  by  Brother  Syiem,  the  goods  were  steel  strips before  being  subjected  to  process of cold rolling and were steel strips after  the  process  of  cold  rolling  and  had  discharged  duty  liability  as strips  before  being  subjected  to  the  process.  There  could,  therefore, arises no occasion for demanding duty again on the same product.\n<\/p>\n
14. I agree with the order proposed by brother Syiem.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Atma Steel Private Limited vs Collector Of Central Excise Equivalent citations: 1988 (36) ELT 129 Tri Del ORDER H.R. Syiem, Member (T) 1. This appeal dated 21st October, 1982 filed by M\/s. Atma Steel Limited, Derabassi, is against the imposition of penalty, confiscation of goods and demand of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-169902","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nAtma Steel Private Limited vs Collector Of Central Excise - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/atma-steel-private-limited-vs-collector-of-central-excise\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Atma Steel Private Limited vs Collector Of Central Excise - 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