2. The appellants use zinc in their galvanizing line for galvanizing steel products. This is done by putting steel products in zinc bath.
The Ld. Counsel for the appellants Shri S.P. Mazumder states that three test reports relied on by the Department relates to samples taken from the zinc bath for determining the zinc percentage for the purpose of replenishing the bath with zinc ingots to maintain high concentration of zinc. The appellants have all along maintained that the three samples tested by the lab., the reports of which have been relied on by the Department did not relate to the zinc dross which is obtained in the process of galvanizing and dumped outside for subsequent sale to the buyers. He states that it is natural that the samples tested from the zinc bath would have high purity of zinc and the same is different from the zinc dross which is classifiable under Heading 26.19. The Ld.
Advocate also states that the appellants were not required to pay duty on such dross in view of the subsequent decisions of the Apex Court in the case of Commr. of Central Excise v. Indian Aluminium Co. Ltd. reported in 2006 (203) E.L.T. 3 (S.C.) yet (SIC) 10% duty has been paid on the same at the material time during the period 1991-93.
4. We find that the contention made by the appellants all along that the test reports taken from the lab. relate to samples of the zinc bath has not been controverted by the Department. The Department has also not taken any independent sample in respect of the zinc dross sold by the appellants either from their factory or the storage yard or from the buyers end. As such, the appellants are required to be given the benefit of doubt in respect of the contention made by them which is not refuted by the Department. Consequently, we hold that the impugned order confirming the higher rate of duty classifying the zinc dross sold by the appellants under Heading 7901.20 is not sustainable. The impugned order is set aside and the appeal is allowed.