JUDGMENT:

ASHOK BHAN, J.

1. The appellants have filed these appeals under Section 130-E of the Customs Act, 1962 against the Final Order No.547-548 of 2001-B dated 11th December 2001 passed by the Customs, Excise & Gold (Control) Appellate Tribunal [for short, the Tribunal], New Delhi whereby the Tribunal has rejected the appeals filed by the appellants and held that the appellants had not satisfied the conditions for availing the benefit of the Notification No.8/96-CE dated 23rd July 1996 on the ground that the copper waste and scrap used by the appellants had been imported and had not been generated in the factory of production.

2. The issue involved in these appeals is as to whether the scrap imported by the appellants is chargeable to NIL rate of additional customs duty under Section 3 of the Customs Tariff Act 1975.

3. The facts of the case, in brief, are enumerated hereinbelow.

4. In the year 1996-97, the appellants imported copper/brass waste and scrap for use in the manufacture of handicrafts and filed bills of entry and claimed benefit under Exemption Notification No.8/96-CE dated 23rd July 1996. In order to avoid unnecessary delay and demurrage, the appellants paid the duty under protest and filed refund claim before the Asst. Commissioner, ICD, Tughlakabad.

5. Department questioned the refund claim of the appellants by issuing notice dated 10th September 1998 to show cause as to why their refund claim be not rejected as the Tariff Heading 7404.10 would be applicable to the waste which was generated during the process of production only in the factory and then used in the same factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicrafts and hence, the imported goods fall outside the purview of exemption under Central Excise Tariff Heading 7404.10. Despite the opportunity of personal hearing having been given to the appellants, no one appeared before the Asstt. Commissioner (Refund) who, having gone through the record and the facts of the case rejected the claim of the appellants by an order dated 15th October 1998 by observing thus :

".....The tariff heading 7404.10 exempts waste and scraps which is generated during the process of production in the factory and then used in the same factory of production for the manufacture of unrefined or unwrought copper, copper sheets or circles and handicraft. Therefore, there is no substance and legal force in the claimants contention that the brass/copper scrap imported by them is covered under Chapter Heading 7404.10 and is exempted from payment of CVD. Hence, the duty has been charged and paid correctly in the case under reference and there is no question of incidence of any refund. The refund claim therefore merits rejection."

6. This finding arrived at in the order in original was confirmed by the Commissioner of Customs (Appeals) by an order dated 13th June 2001. Being aggrieved, the appellants filed appeal before the Tribunal which has been dismissed by the impugned order, holding that the condition of the notification of the Tariff Heading 7404.10 had not been satisfied by the appellants as the copper waste and scrap had been imported by the appellants from foreign country and the same had not been generated in the factory of the appellants. Hence, this appeal.

7. Relevant portion of Section 3 of the Customs Tariff Act 1975 provides as under :

"3. Levy of additional duty equal to excise duty.-(1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article.

Provided ... ... ...

Explanation.- In this sec