1. These are six revision applications filed before the Government of India which on transfer are being treated as appeals.
2. Aggrieved by the order of the Appellate Collector of Customs, Bombay, dismissing the application for refund of C.V. duty, appellants have filed these revisions. Their refund application was based on Notification No. 164/75-CE dated 15-7-1975 as amended by Notification No. 49/76-CE dated 16-3-1976. The appellants contended that though the tariff rate was Rs. 2,000/- per MT regarding C.V. duty the effective rate was only Rs. 600/- per MT or Rs. 1,500/- per MT as applicable on the date of clearance from the warehouse cleared under Section 15(b) of the Customs Act. The Appellate Collector dismissed the refund application on the ground that the C.V. duty has merely been recovered at the tariff rate under Item 27 of the Central Excise Tariff Schedule in terms of the explanation to Section 2A of the Indian Tariff Act.
According to him the explanation under Section 2A of the Indian Tariff Act, 1934 the Excise duty for the time being leviable on like articles if produced or manufactured in India meant the highest duty where the duty is leviable at different rates.
3. Shri Kohli, the learned consultant appearing for the appellants, submitted that all the ingots were imported in 1976 and that the aluminium was not 'levy' aluminium. They were not subject to the provision of 'Aluminium (Control) Order, 1970'. He further argued that being non-levy-aluminium the subject goods, in the absence of any other Control Order, would not fall within the proviso of the Notification.
He placed reliance on CEGAT Order No. 502/84-B dated 14-6-1984 (Mukand Iron and Steel Ltd.).
4. Shri Kunhikrishnan, appearing for the Department, pointed out that the Notification applied only to levy aluminium. The rigour of Notification No. 164/75 did not apply to the imported goods. But he stated that the duty should be determined as on the date of concerned clearance and not as per the Notification No. 49/76 in respect of the clearance at the Rate of Rs. 600/- per MT. "In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the notifications of the Government of India in the Ministry of Finance (Department of Revenue and Insurance) Nos. 41/75-Central Excise and 42/75-Central Excise, dated the 1st March 1975, the Central Government hereby exempts aluminium, falling under Item No. 27 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon as is in excess of thirty per cent ad valorem, plus one thousand and five hundred rupees per metric tonne: Provided that the exemption contained in this notification shall not apply in relation to aluminium in any form - (i) required by the Central Government to be supplied as levy-aluminium in pursuance of the Aluminium (Control) Order, 1970, as in force for the time being, read with the notifications and orders issued thereunder; or (ii) manufactured by any person out of aluminium of any other form that has been supplied, in pursuance of the order referred to in Clause (i) as levy-aluminium." As indicated above the proviso denotes that the notification will not apply in respect of levy aluminium supplied in pursuance of the Aluminium (Control) Order, 1970. The exemption will also not apply to the manufacture out of levy aluminium supplied in pursuance of the order. The admitted facts of the present appeals indicate that in the very nature of things the conditions could not be applicable to the subject goods which are imported. They were manufactured out of the aluminium imported from abroad. The Appellate Collector has proceeded on the ground that the conditions of the notification were not fulfilled. But he has overlooked the main factor namelyihat the conditions of the notification would not apply to subject goods. We accept the arguments of the learned consultant that the notification would apply only to levy aluminium, i.e., indigenous aluminium produced and supplied under the Aluminium (Control) Order. As the goods were imported aluminium the question of application of proviso to Notification No. 164/75 would not arise.
5. In the grounds of appeal an objection has been taken that the duty should be levied at the rate prevalent when the goods entered the territorial water of India. Shri Kohli rightly did not press this ground and we have therefore not dealt with it. The impugned orders are therefore set aside and the appeals are allowed with consequential relief. The C.V. duty will be calculated at the rate of Rs. 600 per MT or Rs. 1,500/- per MT as the case may be pending upon the date of clearance from the warehouse under Section 15(b) of the Customs Act.