1. M/s. S.K.C. Dyestuff and Chemical Industries, Madras, filed this revision application dated 4 10 1982 against Order in Appeal, dated 27 3 82, passed by the Appellate Collector of Customs, Madras, which has been transferred to the Tribunal and is being considered as an appeal.
2. The short question in this appeal relates to liability of the goods in question, viz., zinc ash imported by the Appellants to countervailing duty under Item No. 26B of Central Excise Tariff. Shri N.C. Sogani, Consultant, appearing on behalf of the Appellants, first attempted to argue that the zinc ash arises out of process of smelting operations and accordingly should be considered as eligible to the exemption under Notification No. 104/73 C.E., dated 21 4 1973 and should not be subjected to the countervailing duty. In this connection he referred to the certificate dated 16th October, 1980, of the suppliers to the effect that the goods in question had arisen out of zinc smelting operations in zinc smelter. The said certificate further states that zinc ash is not manufactured by any other process. He produced a certificate dated 6 3 1981 from the Indian Institute of Technology to the effect that zinc ash can arise out of smelting or melting of zinc. In other words, zinc ash can arise in the process of smelting or melting of zinc and not only from smelting operations. The Appellants have not been able to produce any satisfactory evidence to the effect that zinc ash in question has arisen out of smelting operations only so as to be eligible for the exemption under the Notification referred to above. Shri Sogani after seeing the case already decided by the Tribunal in the matter of Mis Chemtech Industry v. Collector of Customs, Bombay, reported in 1983 E.L.T. 551 did not wish to press this argument. However, in the alternative he argued that the zinc ash in question should be assessed under Item 68 CET and relied on the Baroda Collectorate Trade Notice No. 201/82, dated 6 11 1982. According to this Trade Notice, zinc ash was assessable under Item 68 CET prior to amendment of Item 26 B Central Excise Tariff on 1 3 81.
3. Shri Lakshmikumaran, SDR, had no objection to assessment of zinc ash under Item 68 in view of the Tariff Advice of the Central Board of Excise and Customs which has been incorporated in the Trade Notice issued by the Baroda Collectorate referred to above. Since it is a common point that the zinc ash in question has been imported before 1 3 1981, the countervailing duty should be levied under Item 68 at the appropriate rate. The orders of the lower authorities that the benefit of Notification No. 104/73, dated 21 4 1983 (sic) is available only to indigenous goods produced locally, is clearly not supportable in view of the Madras High Court judgment in the matter of Saigal Industries v.Central Board of Excise and Customs reported in 1980 ELT page 547. In the light of the above observations, we order the goods be assessed under the Item No. 68, CET for the purpose of countervailing duty. The appeal is thus allowed and the order passed by the lower authorities set aside.