Judgment

Sen, J.-The appellant is a Company engaged in manufacture of coal tar products. An exemption notification was issued by the Central Government exempting tar falling under Tariff Item 11 of Central Excise Tariff from the whole of excise duty leviable thereon, Tariff Item No. 11 is :

‘‘ Item No. Description of Rate of duty Goods

11. Coal (Excluding lignite) and coke all sorts, including calcined petroleum coke: asphalt, Bitumen and Tar-

(1) Coal and coke not Ten rupees elsewhere specified. per metric tone

(2) Petroleum coke, Twenty per-other that calcined cent and vao-petroleum coke. Rem plus two

thousnad ru- pees per met-

ric tone

(3) Calclined petro- Twenty per- leum coke. cent and valo-

rem.

(4) Asphalt and bitu- Two hundred men (including cut- rupees per back bitumen and metric tone. asphalt) natural or

produced from petro-

leum or shale.

(5) Tar distilled from One hundred coal or lignite and rupees per other mineral tars, metric tone.

including partially

distilled tars and

blends of pitch with

creosote oils or with

other tar distillation

products.

The Exemption notification is as follows :

“Tar is exempt from duty  

Tar 121/62-CE dt.13.6.62

In exercise of the powers conferred by Rule 8(1) of the Central Excise Rules. 1944, the Central Government hereby exempts Tar falling under Item 11 with effect from the 24th April, 1962, from the whole of the excise duty leviable thereon.”

2. The appellant’s case before the excise authority was that its products were fully exempt from excise duty by virtue of the above notification. The case of the Department on the other hand, is that the goods manufactured by the appellant did not come within the ambit of Tariff Item 11. Therefore, there is no question of granting any exemption from excise duty to these products. The dispute ultimately went to the Tribunal. The Tribunal, after hearing the parties and taking into consideration the report of the Chemical Examiner, came to the conclusion that some of the goods manufactured by the appellant came within the ambit of clause (5) of Tariff Item 11 and, therefore, were exempt from excise duty. The Tribunal, however, held that no relief could be given to the assessee in respect of some of the products in view of an earlier decision in the case of Indian Alumini­um Co. Ltd. v. Collector of Customs, Cochin1. The relevant part of the order of the Tribunal is as under :

“We do not see any reason to deviate from the above-referred to deci­sion. Respectfully following the same, we uphold the classification of items at serial Nos. 3 to 8 under Item 68, CET. Notification No. 121/62 applies only to tar falling under Item No. 11(5). Therefore, it does not apply to the subject pitches.”

The goods mentioned in Serial Nos. 3 to 8 of the Chemical Examiner’s Report were as under :

SI. No. Description Gist of the results in the of the of chemical test Classi- product

fication list

 1.  xxx xxx

 2. xxx   xxx

 3. Soft Pitch The sample is coal                            tar pitch

 4. Soft Medium -do- Pitch

 5. Hard Pitch -do-

 6. Hard Medium -do- Pitch

 7. Special Hard The sample is coal Pitch