Holding

Because Chapter Note 4 deems the conversion of ore into concentrate as manufacture, the concentrate is a separate commodity from ore and is not covered by the exemption in Notification No. 4/2006‑CE.

Summary

M/S. Star Industries imports roasted molybdenum ore concentrate for ferro‑alloy production and claims exemption from customs counter‑vailing duty under Notification No. 4/2006‑CE, which exempts "ores". The Customs Department contended that the imported material is a concentrate, not an ore, and therefore not covered by the exemption. The dispute turned on the effect of Chapter Note 4 (added in 2011) to Chapter 26 of the Central Excise Tariff Act, which declares that converting ores into concentrates amounts to "manufacture". The Supreme Court held that, because the conversion is deemed manufacture, the concentrate is a distinct product from ore and falls outside the exemption that applies only to ores. Consequently, the appeal was dismissed with costs.

Issues considered

Whether roasted molybdenum ore concentrate qualifies as "ores" under Notification No. 4/2006‑CE.
Whether Chapter Note 4, which treats conversion of ore to concentrate as manufacture, overrides the earlier interpretation that roasting does not constitute manufacture.
How Chapter Note 2 and Chapter Note 4 should be read together for tariff classification.
Whether exemption notifications must be construed strictly, with any doubt resolved in favour of the revenue.

Legislation cited

Central Excise Acts. Section 5A
Central Excise Tariff Act, 1985s. Chapter 26, s. Note 2, s. Note 4, s. Section 2(f)
Customs Act, 1962s. Section 110, s. Section 111, s. Section 112(a), s. Section 114A, s. Section 125
Customs Tariff Act, 1975s. Section 2A, s. Section 3

Subjects

exemption notificationore concentratecustoms dutycounter‑vailing dutyChapter Note 4manufacturestrict constructiontariff classificationferro‑alloys

Judgment

[2015] 11 S.C.R. 570

A M/S. STAR INDUSTRIES
v.
COMMISSIONER OF CUSTOMS (IMPORTS), RAIGAD
(Civil Appeal No.6088 of 2013)
B
OCTOBER 07, 2015
[A.K. SIKRI AND R. F. NARIMAN, JJ.]

Central Excise Tariff Act, 1985: Chapter 26 -
c Notification No. 412006-CE - Claim for exemption under the
Notification - Import of' Roasted Molybdenum Ore
Concentrate for manufacture of Ferro-Alloys - Notification
No. 412006-CE at Serial no. 4 mentions the item 'Ore' and
excise duty payable is 'Nil' - Whether 'Ore Concentrate'
D imported by the assessee eligible for complete exemption
from payment of additional duty of custom/CVD under the
Notification - Held: By virtue of Note 4, Concentrate has to
be necessarily treated as different from Ores which is deemed
as manufactured product after Molybdenum Ore underwent
E the process of roasting - Since Ores and Concentrates are
treated as two distinct items and Notification No.412006-CE
exempts only 'Ores', Concentrates automatically falls outside
the purview of said Notification.

F Dismissing the appeal, the Court

HELD: 1. It is very clear from the reading of the
judgment in Hindustan Gas case that basic and the
common thread which runs throughout the decision is
G that subjecting ore to the process of roasting does
not amount to manufacture. This very basis gets
knocked off with the amendment carried out in the year
2011 with the insertion of Note 4. Note 4 now
categorically mentions that the process of converting
H
570
M/S. STAR:~ 'fiJSTRIES v. COMMISSIONER OF 571
CUSTOM::> tiMPORTS), RAIGAD

ores into concentrates would amount to 'manufacture'. A
Therefore, it cannot now he argued that roasting of
ores and converting the same into concentrates would
not be manufacture. With the addition of Note 4, a
legal friction is created treating the process of
converting ores into concentrates as manufacture. B
Once this is treated as manufacture, all the
consequences thereof, as intended for creating such a
legal friction, would automatically follow. The inevitable
implications are that Molybdenum Ore is different from
concentrate. That is inherent in treating the process as C
'manufacture' inasmuch as manufacture results in a
different commodity from the earlier one. The purpose
of treating concentrate as manufactured product out
of ores is to make concentrates liable for excise duty.
0
Otherwise, there :was no reason to deem the process of
converting ores into concentrates as manufacture.
[Paras 28] (590-C-G; 591-D-E]

2. Chapter Note 2 was retained even after insertion
of Chapter Note 4. No doubt, as per Chapter Note 2, E
'ores' means minerals of mineralogical species actually
used in the metallurgical industry for the extraction of
mercury, of the metals of heading 2844 or of the metals
of Section XIV or XV, even if they are intended for F
non-metallurgical purposes. As per this note, metals of
Section XV would be included in the term 'ores'.
However, after the insertion of Chapter Note 4, these
two Notes·, namely, Note 2 and Note 4 have to be read
harmoniously. Note 2, when seen along with Note 4, has G
to govern itself in limited territory. On · the basis of
deeming fiction created by Note 4, it is held that the
process of roasting of Ore amounts to. manufacture and
it creates a different product known as Concentrate,
for the purpose of exemption notification, which H
572 SUPREME COURT REPORTS (2015] 11 S.C.R.

A exempts only 'Ores' it is not possible to hold that
Concentrate will still be covered by the exemption
notification. Therefore, harmonious construction of Note
2 and Note 4 would be that in those cases when Note 4
applies and Ores becomes a different product, it ceases
B to be Ores. As the Legislature has intended to treat ores
and concentrates as two distinct items and Notification
No. 412006-CE exempts only 'ores', concentrates
automatically falls outside the purview of said
notification. Exemption notifications are to be construed
C strictly and even if there is some doubt, benefit thereof
shall not enure to the assessee but would be given to
the Revenue. [Paras 30, 31] [591-G-H; 592-A-D;
F-H; 593-A]
D Hyderabad Industries Limited and Anr. v. Union
of India and Ors. 1999 (3) SCR 471: (1999) 5 SCC
15; Minerals and Metals Trading Corporation v.
Union of India and Ors. 1973 (1) SCR 997: (1972)
2 sec 620 - held inapplicable.
E
Mis. Navopan India Ltd., Hyderabad v. Collector
of Central Excise and Anr. 1994 (73) ELT 769
(SC); IVRCL Infrastructure & Projects Ltd. v.
Commissioner of Customs,Chennai 2015 (319)
F ELT 194 (SC); Hyderabad Industries Ltd. v. Union
of India 1999 (108) ELT.321 (SC)- relied on.
Case Law Reference
1999 (3) SCR 471 held inapplicable. ·Para 15
G
1973 (1) SCR 997 held inapplicable. Para 18
1994 (73) ELT 769 (SC) relied on. Para 32
2015 (319) ELT 194 (SC) relied on. Para 33
H' \ 1999 (108) ELT 321 (SC) relied on. Para 34
M/S. STAR :~~l)USTRIES v. COMMISSIONER OF 573
CUSTOMS (IMPORTS), RAIGAD

CIVIL APPELLATE JURISDICTION: Civil Appeal No. A
6088 of 2013

From the Judgment and Order No. A/322/13/CSTB/C-I
dated 09.01.2013 of the Customs, Excise, Service Tax
Appellate Tribunal, West Zonal Bench, Mumbai in Appeal No. B
C/1311/12

V. Lakshmikumaran, M. P. Devanath, L. Charanaya, S.
Vasudevan, Hemant Bajaj, Nupur Maheshwari, Anandh K. for
the Appellant. c
YashankAdhyaru,Atulesh Kumar,Arijit Prasad, Rashmi
Malhotra, B. Krishna Prasad,forthe Respondent.

The Judgment of the Court was delivered by
D
A.K. SIKRI, J. 1. The appellant (hereinafter referred to
as the 'assessee') is engaged in the manufacture of Ferro-
Alloys falling under Chapter 72 of Central Excise Tariff. One
of the inputs for manufacture of Ferro-Alloys is Roasted
Molybdenum Ore/Concentrate. The assessee has been E
regularly importing the aforesaid material i.e. Roasted
Molybdenum Ore/Concentrate (hereinafter referred to as the
'Ore Concentrate').

2. It is not in dispute that t~e import of Ore Concentrate F
is, otherwise, subject to additional duty of custom i.e.
countervailing duty (CVD) in addition to normal custom duty.
However, vide Notification No. 4/2006-CE dated March 01,
2011, which is a general exemption notification, various items,
either fully or partially, exempted from payment of excise duty. G
One of the items described in thi~ notification is 'Ores' which
is mentioned at SI. No.4 and the excise duty payable is Nil. In
case, the aforesaid goods imported by the assessee, namely,
'Ore Concentrate' falls within the aforesaid entry, as a fortiori,
H
574 SUPREME COURT REPORTS [2015] 11 S.C.R.

A no CVD would be payable on the import of this item. The
question, therefore, that arises is as to whether the 'Ore
Concentrate' imported by the assessee is eligible for complete
exemption from payment of additional duty of custom/CVD
under Notification No.4/2006-CE dated March 01, 2006. The
B answer to the aforesaid question would depend upon the
answer to another incidental question, namely, whether the 'Ore
Concentrate' imported by the assessee can be treated as
'Ores' mentioned in Notification No.4/2006. To put it otherwise,
whether Molybdenum Ore after it undergoes the process of
C being roasted and comes to be known as Ore Concentrate
still remains Ores.

3. Before we attempt to answer the aforesaid question(s),
we deem it apposite to visit those fundamental facts that will
D have bearing on the issue involved.

4. The assessee has been regularly importing Ore
Concentrate and claiming the benefit of the aforesaid
Notification No.4/2006-CE. The Customs Department had
E been extending this benefit. As a result, no CVD was levied
under Section 3(1) of the Custom Tariff Act, 1975. However,
according to the Department, the Directorate of Revenue
Intelligence (DRI) received some information indicating that
the assessee was misdeclaring the product as 'Molybdenum
F Ore' or 'Roasted Molybdenum Ore' and on that basis, seeking
benefit of exemption under Notification No.4/2006-CE.
According to them, Roasted Molybdenum Ore was, in fact,
Ore Concentrate which was different from 'Ores' and, therefore,
benefit of said Notification No.4/2006-CE was not available
G to the assessee. Based. o"n the above intelligence, two
consignments of the assessee imported under B/E
No.4567406 dated September 06, 2011and4551981 dated
September 05, 2011 were detained for examination on
H September 14, 2011. Examination of the goods revealed that
M/S. STAR INDUSTRIES v. COMMISSIONER OF 575
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

in respect of B/E No.4567406 dated September 06, 2011, A
the bags in which the goods were packed contained labels/
marking which read as 'Roasted Molybdenum Concentrate'.
In respect of B/E No.4551981 dated September 05, 2011,
the markings were 'Molybdenum Sulfide (MoS2) Roasted.
Samples of the products under importation were drawn and B
sent for chemical examination to Chemical Examiner, CRCL,
Vadodara. On that basis, the goods/consignment was seized
on September 26, 2011 under the provisions of Section 110
of the Customs Act, 1962 on the reasonable plea that they are
liable to confiscation under Section 111 of the said Act. C

5. Statement of Shri Babu Khandelwal, Partner of the
assessee-firm was recorded under Section 108 of the
Customs Act, wherein, he, inter alia, admitted that the goods
under import were Roasted Molybdenum Ore Concentrates D
which they procured from M/s Glencore, Switzerland and M/s
Thompson Creek Metals, USA. He further admitted that natural
ores and ore concentrates are distinct commodities in terms
of composition and concentrates are value added products
and the Molybdenum content in· the roasted molybdenum ore E
is in the range of 56% to 65%. He further stated that they have
declared the goods as Roasted Molybdenum Ore as per the
description given in the invoices. He also agreed with the test
repqrts given by the Chemical Examiner. As regards CVD F
exemption under Notification 4/2006-CE, Shri Khandelwal
stated that since ores include concentrates, he had claimed
the exemption. He also agreed to pay the CVD involved in
respect of the imports made under the aforesaid Bills of Entry.
The seized goods valued at Rs.6, 12,60,943/-were released G
provisionally to the assessee on execution of a bond for the
said value and bank guarantee of Rs.61,26,?00/-. The
assessee also paid the differential duty of Rs.66,61,664/- on
October 04, 2011. The investigation further revealed that the
assessee had imported identical goods earlier also under 14 H
576 SUPREME COURT REPORTS [2015] 11 S.C.R.

A B/Es by declaring the goods as 'Molybdenum Ore/Roasted
Molybdenum Ore' and availing CVD exemption totally
amounting to Rs.3, 10,73,035/-during the period March, 2011
to July, 2011.

B 6. The Department, thereafter, issued a show cause
notice dated March 09, 2012 to the assessee proposing to
confiscate 59,000 kgs. of Roasted Molybdenum Ore
Con.centrate seized on September 26, 2011 valued at
Rs.6, 12,61,048/- and 275000 kgs. of the said goods valued
C at Rs.28,57,49,418/- imported earlier under 14 Bills of Entry,
under the provisions of Sections 111 (d) and 111 (m) of the
Customs Act, 1962. The notice also proposed to demand
differential duty amounting to Rs.66,61,664/- on the seized
goods and Rs.3, 10, 73,035/- on the goods imported earlier,
D under the provisions of Section 28(1) of the Customs Act along
with interest thereon under Section 28AA apart from penalties
on the assessee under Sections 114A and 112(a) of the
Customs Act. -

E 7. After adjudication, order was passed confirming the
demand raised in the show cause notice which covered the
period from March, 2011 to September, 2011. The importation
seized and realised earlier provisionally was confiscated under
Sections 111 (d) and 111(m) of the Customs Act with an option
F to redeem the same on payment of fine of Rs.1 crore under
Section 125 of the said Act and those imported earlier was
liable for confiscation under the same provisions in respect of
which differential duty demand of Rs.66,61,664/- and
Rs.3, 10, 73,035/- were confirmed by denying the benefit of
G CVD exemption along with interest under Section 28AA of the
Customs Act. A penalty of equivalent amount was also imposed
on the assessee under Section 114Aofthe said Act.

8. Aforesaid order was challenged by the assessee in
H the form of an appeal before the Custom Excise and Service
M/S. STAR INDUSTRIES v. COMMISSIONER OF 577
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

Tax Appellate Tribunal (CESTAT), Mumbai Bench. Vide A
impugned decision dated February 08, 2013, the CESTAT
has concurred with the opinion of the adjudicating authority on
. the merits of the case. However, partial relief is granted only to
the effect that confiscation of goods under Section 111 (d) of
the Customs Act was improper and order to that extent is set B
aside with consequential order of setting aside the imposition
of redemption fine under Section 125 and penalty under
Section 112(a)/114Aofthe Customs Act. The outcome of the
appeal is summed up in para 8, which reads as under:
c
"8. To sum up, we uphold the duty demand and interest
thereon under the provisions of Sections 28 of the
Customs Act along with interest thereon under Section
28M. However, we set aside the confiscation of the
goods under Section 111 of the said Act and imposition D
of redemption fine under Section 125 and penalty under
Section 114A ibid."

9. Before we proceed further, it is pertinent to point out
that the instant appeal was tagged with Civil Appeal No.1036 E
of 2007 titled Commissioner of Customs (Imports) v. Mis.
Hindustan Gas and Industries Ltd. That was ·an appeal
which related to the period from September 02, 1998 to
October, 1999. The issue was identical inasmuch as there
also the importer had imported Molybdenum Concentrate and F
claimed benefit of exemption Notification No. 5/1998-CE which
was prevalent at the material time and it exempted 'Ore' vide
SI. No.10 of the said notification from payment of excise duty.
There also the adjudicating authority had taken the view that
after the Molybdenum Ore was subjected to the process of G
Concentratic and Roasting it had become a different product,
namely, Molybdenum Oxide and did not remain 'Ore' and,
therefore, was not entitled to the benefit of exemp.tion
notification which applied only to the commodity 'Ore'. In an H
578 SUPREME COURT REPORTS [2015] 11 S.C.R.

A appeal, however, same Mumbai Bench of CESTAT set aside
the order of the adjudicating authority holding that even after
Molybdenum Ore had undergone the process of Roasting, it
remained Ore and there was no difference between Ore and
Concentrate which were one and the same product. We would
B like to mention that though we have dismissed the appeal of
the Revenue against the aforesaid order of the CESTAT on
the ground that the tax effec.t involved in the said appeal is
negligible, it would be necessary to understand the reason
which prevailed with the CESTAT to record the finding that
C Concentrate is to be understood as nothing but enriched and
prepared ore meaning thereby it remains the same product,
namely, 'Ores' even after the aforesaid processing of Roasting.
Before discussing this order and to understand the implication
thereof in an appropriate manner, it is necessary to point out
0
·the tariff entries and all relevant provisions of the exemption
notification.

10. Chapter 26 of the Central Excise Tariff Act, 1985
deals with 'Ores, Slag and As~ Notes'. Tariff Item 2601 thereof
E gives the description of goods falling in the said item as 'Iron
Ores and. Concentrates including Roasted Iron Pyrites'. It
contains certain Chapter Notes, Note 2 thereof with which we
are concerned is to the following effect:
F "2. For the purposes of headings 2601to2617, the term
"ores''. means minerals of mineralogical species actually
used in the metallurgical industry for the extraction of
mercury, of the metals of heading 2844 or of the metc;ils
of Section XIV or XV, even if they are intended for non-
G metallurgical purposes. Headings 2601 to 2617 do not,
however, include minerals which have been submitted
to processes not normal to the metallurgical industry."

11.There was an amendment in the said Chapter in the
H
M/S. STAR INDUSTRIES v. COMMISSIONER OF 579
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

year 2011, whereby, inter alia, Chapter Note 4 was added, A
which reads as under:

"4. In relation to products of this Chapter, the process of
converting ores into concentrates shall amount to
"manufacture". B

12. Description of Tariff Item 2601, however, remained
the same. We would, however, like to refer to sub-item 2613
which was also on the identical terms as in the original Chapter
26, which reads as under: c
'Tariff Item . !Descriptlon of goods , Unit I
I
Rate of~I
,duty
,2613 ! Molybdenum ores and concentrates ·
' ~. - -- -- - - ~ -+- -- - D
:26131000 ,-Roasted ! kg. ·12%I
l . ·-··------
26139000 :-aher .kg. :12°/o

13. It would also be useful, at this stage, to mention about E
general exemption Notification No.4/2006. Same was issued
in exercise of powers conferred upon the Central Government
by sub-section (1) of Section 5A of the Central Excise Act in
the public interest, thereby exempting excisable goods of the
description specified in column (3) of the table below read F
with the relevant List appended hereto. Item 3 thereof reads
as under:

.S. No.· Chapter orj Description of Rate :Condition I
,heading or sub- excisable goods 'No• :l G
·heading or tariff!
item of the First:
1
Schedule
r
4. 2601to2617
-- - - I-______ _ Ores Nil
H
580 SUPREME COURT REPORTS [2015) 11 S.C.R.

A We would like to point out that the amendment which was
carried out in the year2011 basically related to addition of
Chapter Note 4 as per which the process of converting Ores
into Concentrates is treated as 'manufacture'.

B 14. Having taken note of the relevant statutory/legal
provisions, we revert back to the orders passed by the CESTAT
in Mis. Hindustan Gas and Industries Limited case. While
discussing this decision of the CESTAT, it is to be borne in
mind that Chapter Note 4 was not there at the relevanttime
C when this decision was rendered in December, 2006.

15. It is settled position that for the purpose of determining
the levy of CVD under Section 3 of the Customs Tariff Act, it is
to be deemed that the product that was imported was
o manufactured in India and thereafter rate of central excise duty
leviable thereupon is to be determined. That duty becomes
the CVD i.e. the additional duty on the import of the item. This
position stands settled by the Constitution Bench judgment of
this Court in Hyderabad Industries Limited and anotherv.
E Union of India and others1 • Two implications follow from
the aforesaid judgment, namely, (i) if the process by which
concentrate obtained does not amount to manufacture in India,
then the imported concentrate would also not be subjected to
CVD, and (ii) if the goods are manufactured or produced in
F India, are exempted or at Nil rate of duty due to any excise
exemption notification, the imported goods would be subjected
to Nil rate of CVD.

16. The Tribunal in Hindustan Gas case held that
G roasting of an ore, to obtain concentrate, does not amount to
manufacture, especially because of the reason that roasting
is a process by which impurities in the ore are removed and

H 1
(1999) s sec 1s
MIS. STAR INDUSTRIES v. COMMISSIONER OF 581
CUSTOMS (IMPORTS), RAIGAD [AK. SIKRI, J.]

the recoverable content of metal oxide is enhanced. The A
Tribunal also held that the product in question attracted 'Nil'
duty as it was covered by exemption notification because of
the reason that Ore and Concentrate are one and the same
and hence entitled to the exemption. While answering the two
questions in the aforesaid manner, the Tribunal explained the B
process of Concentrate. For this purpose, it referred to Kirk-
Othmer's Encyclopedia of Chemical Technology. Vol. 16. Page
315, Concentrate and Ore are defined as under:

"Concentrate is an action to intensify in strength or purity C
by the removal of valueless or unneeded constituents,
i.e. separation of ore or metal from its containing rock or
earth. The concentration of ores always proceeds by
steps or stages. Liberation of mineral values is often
the initial step. Concentrate also means a product of D
concentration i.e. enriched ore after removal of waste in
a beneficiation mill.

Ore. A mineral or aggregate of minerals from which a
valuable constituent, especially a metal, can be recovered E
at a profit."

17. Having regard to the aforesaid definitions, the
Tribunal opined that the term Concentrate has to be understood
as nothing but enriched and prepared ore. The Tribunal, F
thereafter, relied upon judgment of this Court in Minerals and
Metals Trading Corporation v. Union of India and others2 .
That was a case where the assessee had imported Wolfram
Concentrate having minimum 65% Tungsten Oxide. The
assessee had contended that Wolfram Concentrate is an ore G
and, therefore, classifiable under Item 26. This contention of
the assessee was accepted by this Court in the following words:

2
(1972) 2 sec e20 H
582 SUPREME COURT REPORTS [2015] 11 S.C.R.

A "The separating of wolfram ore from the rock to make it
usable ore is a process of selective mining. It is not a
manufacturing process. The important test is that the
chemical structure of the ore should remain the same.
Whether the ore imported is in powder or granule form
B is wholly immaterial. What has been to be s~en is what
is meant in international trade and in the market by
wolfram ore containing 60% ore more W03. On that
there is a preponderation weight of authority both of
exports and books and_ of writings on the subject which
c show that wolfram ore when detached and taken out from
the rock in which it is embedded either by crushing the
rock and sorting out pieces of wolfram or by washing or
magnetic separation and other similar and necessary
process it becomes treated with any chemical it cannot
D
be classified as process".

18. The Tribunal also took note of some more judgments
wherein removal of impurities from a mined product was not
treated as manufacturing process. On that basis, the Tribunal
E came to the conclusion that roasting of an ore, to obtain
concentrate, does not amount to manufacture, as it only
removed the impurities and the recoverable content of metal
oxide is enhanced thereby. Thus, ore and concentrate are
F one and the same as concentrate remains ore and only
impurities were removed therefrom. Again, referring to the
judgment of this Court in MMTC (supra), the Tribunal made
the following observations: ·

" .. .Therefore, 'Ore' is genus and 'Concentrate' is species.
G Therefore, under Central Excise exempting ore
concentrates of ores would also be exempted. SI. No.10
of Notification No. 5/98-CE grants unconditional
exemption to ores falling under Heading 26.01to26.17.
Applying the decision of the Supreme Court in MMTC's
H
M/S. STAR INDUSTRIES v. COMMISSIONER OF 583
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.)

case, the expression 'ores' in the notification will include A
'concentrates' also.The mention of ores and concentrates
separately in Heading 26.03 does not go against the.
above arguments. Even when an entry does not mention
concentrate but refer only to ore, the Supreme Court in
MMTC case holding that concentrate will be classified B
as ores will therefore, applying same principle while
construing the word 'ore' appearing in the Notification
No. 5/98 will call for coverage of the concentrate. It is
clear from the judgment of Supreme Court in MMTC's
case, that 'ore' is genus and 'concentrate' a species. C
Therefore, separate mention of 'ore' and 'concentrate'
in Heading 26.03 ipsofacto will not imply they are
different. Therefore, term 'ore' covered by Notification
No. 5/98 can apply to 'concentrate' also."
D
19. Thereafter, it specifically referred to Note 2 of Chapter
26 and held that said Note also supported the view taken by
the Tribunal by pointing out that as per Note 2, 'Ores' means
minerals of mineralogical species actually used in the
metallurgical industry for the extraction of mercury of the metals, E
inter a/ia, of Section XIV to XV and discussed the implication
of this Note in the following words:

"The use of the imported goods is for recovery of metal.
Thus, the primary condition of Note 2 of Chapter 26 viz. F
the imported goods are used for the metals of Section
XV, is satisfied, the second condition of Note 2 of
Chapter 26 is also satisfied inasmuch as the imported
concentrate had not been subjected to process not
normal to the metallurgical industry. The department, in G
fact, has stated in the ground of appeal that by virtue of
Note 2 to Chapter 26, the goods have been classified
under Heading 2613.10. Therefore, concentrate in
question when it satisfies and is covered under term 'ore' H
584 SUPREME COURT REPORTS [2015] 11 S.C.R.

A as given in Chapter Note2. The above definition of'ore'
mentioned in Note 2 of Chapter 26 will also apply to
appearing in S. No. 10 of Notification No. 5/98-CE."

20. As per the aforesaid decision of the Tribunal which
B had followed judgment of this Court in MMT.C, roasting of ore
and thereby removing the impurities from the ore made the
ore known as concentrate but it was still covered by the genus
ore and concentrate was only a specie of this genus. This
process did not amount to any manufacture and, therefore, no
C new item, commercially known, come into existence.

21. Mr. Adhyaru, learned senior counsel appearing for
the Revenue submitted that the aforesaid decision was
rendered in the context of unamended Chapter 26 and this
o was before the addition of Chapter Note 4. He pointed out
that judgment in MMTC was also of the same vintage.
According to him, addition of Note 4 to Chapter 26 made
fundamental difference, thereby, rendering the decision of
MMTC and the aforesaid. decision of Cf:STAT in Mis.
E Hindustan Gas and Industries Limited inoperative for the
purposes of present case. He vehemently argued that the
aforesaid decisions proceeded on the basis that roasting of
an ore to obtain concentrate does not amount to manufacture.
This basis was knocked off with the insertion of Chapter Note
F 4, thereby, introducing a fictional element, namely, treating the
process of converting ores into concentrate as 'manufacture'.
He, thus, was emphatic in his submission that now conversion
of ore into concentrate was treated as manufacture and,
therefore, the concentrate could not be treated as same
G product as ore and it had transformed into an altogether
different product. On that basis, he proceeded to build up his
case by submitting that Tariff Item 2601 which describes the
goods as 'iron ores and concentrates, including roasted iron
H pyrite' clearly treated the two items differently i.e. iron ore on
MIS. STAR INDUSTRIES v. COMMISSIONER OF 585
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

the one hand and concentrate on the other. He also submitted A
that Tariff Item 2613 to which this product specifically related
also gives the description as 'Molybdenum Ores and
Concentrates' which would again mean that Molybdenum Ore
was different from concentrate and two were distinct items. In
the same hue, his further submission was that exemption B
notification 4/2006 exempted only 'ores' and did not exempt
'concentrate'. He argued that when the Tariff Entry 2613
mentioned ores and concentrates but the exemption
notification exempted only 'ores' with conspicuous absence
of concentrate, such an exemption notification was to be given C
strict interpretation and even if two views were possible, the
view which favours the Revenue had to be preferred while
interpreting exemption notification.

22. On this basis, grounding his plea on Chapter note 4, D
he made a passionate plea that the impugned decision in
appeal took into consideration the aforesaid significant change
in law with the addition of Note 4 and decided the issue in
correct perspective. He specifically referred to the following E
discussion in the impugned order wherein ores and
concentrates were treated as two different products, which
reads as under:

"From the tariff description given above, the tariff uses
the expression "ores 1;1nd concentrates". Further wherever F
the tariff wanted to prescribe different classification,
separate sub-headings have been provided. For
example, in the case of Iron ore, separate sub-headings
have been provided for iron ore lumps, iron ore fines and
iron ore concentrates. From the above structure, it is G
clear that the use of the expression 'ores and
concentrates' and provision of separate sub-headings
of ores and concentrates wherever necessary, implies
that the legislature consciously made a distinction H
586 SUPREME COURT REPORTS [2015] 11 S.C.R.

A between 'ores' on the one hand and 'concentrates' on
the other. The preposition "and" between the two terms
is conjunctive. If the legislative intention is that ores and
concentrates are one and the same, then the legislature
would have used the expression "ores and concentrates."
B
In the book Principles of Statutory Interpretation, 12th
Edition 2010, Justice G.P. Singh at pages 477 and 478 has
written as under:

c "Conjunctive and Disjunctive Words 'OR' and 'AND'

The word 'or' is normally disjunctive and 'and' is normally
conjunctive but at times they are read as vice versa to
give effect to the manifest intention of the Legislature as
disclosed from the context. (lshwar Singh Bindra v. State
D
ofU.P.,AIR 1968"SC 360, p. 363: (1980) 1sec158;
R.S. Nayak v.A.R.Antulay (1984) 2SCC183, pp. 224,
225: AIR 1984 SC 684; M. Satyanaraya~a v. State of
Karnataka (1986) 2 SCC 512, p. 515: AIR 1986 SC
E 1162). As stated by SCRUTTON L.J.: "You do
sometimes read 'or' as 'and' in a statute. But you do
not do it unless you are obliged because 'or' does
not generally mean 'and' and 'and' does not
generally mean 'or' (Green v. Premier Glynrhonwy Slate
F Co. (1928) 1 KB 561, p. 568, Nasiruddin v. State
TransportAppellate Tribunal, AIR 1976 SC 331 p. 338:
(1975) 2 sec 671; Municipal Corporation of Delhi v. Tek
Chand Bhatia, supra; State (DelhiAdministration v. Puran
Mal (1985) 2 sec 589.: AIR 1985 SC 741.
G
And as pointed out by LORD HALSBURY, the reading
of 'or' as 'and' is not to be resorted to, "unless some
other part of the same statute or the clear intention
of it requires that to be done." (Mersey Docks and
H Harbour Board v. Henderson Bros. (1888) 13 AC 595
MIS. STAR INDUSTRIES v. COMMISSIONER OF- 587
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

(HL) p. 603. See further, Puran Singh v. State of M.P., A
AIR 1965 SC 1583 p. 1584, (para 5); Municipal
Corporation of Delhi v. Tek Chand Bhatia, supra.

But if the literal reading of the words is less favourable to
the subject provided. that the intention of the legislature B
is otherwise quite clear.

[A.G. v. Beauchamp (1920) 1 KB 650; R. v. Oakes (1959)
2 All ER 92]"

In the case before us, the expression used is "ores and c·
concentrates" and the tariff itself has provided separate sub-
headings for these items, wherever it so wanted. Thus the
legislative intent is very clear, that is to treat 'ores' and
'concentrates' as distinct and different commodities.
D
xx xx •xx

From the principles of statutory interpretation as
explained by this Court and applying these to the facts of the
present case, the only reasonable conclusion that can be E
reached is that the legislature intended to treat 'ores' and
'concentrates' distinctly and differently. Otherwise, there was
no need for the legislature to employ these two terms with a
conjunctive 'and' in between. If one treats ores and
concentrates synonymously, as argued by t.be learned counsel F
for the appellant, that would render the term "concentrate"
redundant which is not permissible."

23. He also impressed upon this Court to keep in mind
the purpose of treating the process of roasting a manufacturing G
process which was to bring the said product, namely,
concentra!e within the sweep of central excise levy.

24. The endeavour of Mr. Lakshmikumaran, learned
counsel appearing forthe.assessee, on the other hand, was H
588 $UPREME COURT REPORTS [2015] 11 S.C.R.

A to demonstrate that addition of Note 4 had not made any
difference to the legal position. He submitted that the basic
concept underlined in MMTC case remained the same which
was that ore is genus and concentrate is only a specie and,
therefore, even if it is now to be treated as 'manufacture', still
B for the purpose of applying exemption notification concentrate
would still be covered by umbrella term, 'ore' of which it was a
specie. He reiterated that roasting of ore was only to remove
impurities so that it could be used in the manufacture of Ferro-
Alloys. He also argued that even 'roasted ore' was in Chapter
C Heading 26 and the process, as defined in the technical
dictionaries, makes it only an enriched ore. He further argued
that Chapter Note 2, which was the basis of decision in the
case of Mis. Hindustan Gas and Industries Limited still
occupies the field in the statute book, viz., Chapter 26 and
0
reading thereof makes it amply clear that ore and concentrate
are one and the same product. He submitted that in the
impugned order, the Tribunal has only considered Chapter Note
4 added by amendment in 2011 and altogether omitted to
E discuss the implication of Chapter Note 2 which rendered the
impugned decision as erroneous. · He also argued that the
basic principle enshrined in MMTC judgment, namely, ore is
genus and concentrate is specie, still remains valid even after
the addition of Chapter Note A.
F
25. We have. thoughtfully considered the respective
arguments of counsel for both the parties.

26. Before we discuss these arguments and arrive at a
particular conclusion, we would like to recapitulate the salient
G features of the case about which there is no dispute:

(a) The assessee is seeking benefit of Notification No.4/
2006-CE and relies upon SI. No.4 thereof whlch totally
exempts goods described therein from payment of
H excise duty. The goods which are otherwise excisable
M/S. STAR INDUSTRIES v. COMMISSIONER OF 589
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

are, thus, exempted from payment of duty. Description A
of these goods in SI. No.4 is 'Ores'.

(b) The goods imported by the a~sessee fall in Chapter
26 of Central Excise Tariff Act. Particular Tariff Item is
2613 against which the description of goods given under B
the said Tariff Item is 'Molybdenum Ores and
Concentrate'.

(c) The goods imported by the assessee were not
Molybdenum Ores in original form as mined. They had c
admittedly undergone the process of roasting and after
the roasting, they are known as 'concentrates'. Even the
assessee has described these goods as 'Roasted
Molybdenum Ore Concentrate.'
D
(d) Chapter Note 4 treats the aforesaid process of
roasting Ores into Concentrate as 'manufacture'.

27. On the aforesaid facts, case of the assessee was
that since ores include concentrates, assessee had claimed
exemption from payment of CVD under Notification No. 4/ E
2006-CE. In support of this claim that even after roasting,
concentrates remain ores only on the plea that ores is genus
and concentrates is specie thereof, the assessee refer to
literature on chemical technology and also its earlier judgment F
in Mis. Hindustan Gas and Industries Ltd. case which, in
turn, relied upon the judgment of this Court in MMTC case.
We have already analysed thE'. decision in Mis. Hindustan
Gas and lndustriesLtd. case. The entire decision proceeds
on the basis that roasting of an ore to obtain concentrate does G
not amount to manufacture specially when roasting is a process
by which impurities in the ore are removed and the recoverable
content of metal oxide is enhanced. In support, reference was
made to Kirk-Othmer's Encyclopedia of Chemical Technology.
Likewise, in MMTC case as well, which was relied upon by H
590 SUPREME COURT REPORTS [2015) 11 S.C.R.

A the Tribunal, this Court had held that Wolfram Concentrate which
was having minimum 65% Tungsten Oxide was still an ore and
classifiable under Item 26. Thus, the decision in Hindustan
Gas primarily rested on the reasoning that roasting of an ore
to obtain concentrate would not amount to manufacture and
B ore and concentrate are one and the same inasmuch as
concentrate remains ore and only impurities are removed
therefrom. On this premise, it was held that ore is genus and
concentrate is a specie thereof.

C 28. According to us, it is very clear from the reading of
the judgment in Hindustan Gas case that basic and the
common thread which runs throughout the decision is that
subjecting ore to the process of roasting does not amount to
manufacture. This very basis gets knocked off with the
D amendment carried out in the year 2011 with the insertion of
Note 4. Note 4 now categorically mentions that the process of
converting ores into concentrates would amount to
'manufacture'. Therefore, it cannot now be argued that roasting
of ores and converting the same into concentrates would not
E be manufacture. For the same reason, the judgment in MMTC
becomes inapplicable and reliance upon Kirk-Othmer's
Encyclopedia becomes irrelevant. With the addition of Note
4, a legal friction is created treating the process of converting
F ores into concentrates as manufacture. Once this is treated
as manufacture, all the consequences thereof, as intended for
creating such a legal friction, would automatically follow.
Following shall be the inevitable implications:

(a) It is to be treated that Molybdenum Ore is different
G from concentrate. That is inherent in treating the process
as 'manufacture' inasmuch as manufacture results in a
different commodity from the earlier one. Section 2(f)
defines this term as under:

H "manufacture" includes any process,-
MIS. STAR INDUSTRIES v. COMMISSIONER OF 591
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

(i) incidental or ancillary to the completion of a A
manufactured product;

(ii) which is specified in relation to any goods in the
Section or Chapter notes of the First Schedule to the
Central Excise Tariff Act, 1985 (5 of 1986) as B
amounting to manufacture; or

(iii) which, in relation to the goods specified in the
Third Schedule, involves packing or repacking of such
goods in a unit container or labelling or re-labelling of c
.containers including the declaration or alteration of
retail sale price on it or adoption of any other treatment
on the goods to render the product marketable to the
c9nsumer."
D
(b) The purpose of treating concentrate as manufactured
product out of ores is to make concentrates as liable for
excise duty. Otherwise, there was no reason to deem
the process of converting ores into concentrates as
manufacture. E
29. Once the aforesaid legal repercussions are taken
note of, as a fortiori, it becomes obvious that Notification No.
4/2006-CE which exempts only ores would not include within
itself 'concentrates' also because of the reason that after the F
insertion of Note 4, concentrate is to be treated as a different
product than ores, in law for the purposes of products of
Chapter26.

30. This brings us to the effect of Chapter Note 2 which
is retained even after insertion of Chapter Note 4. No doubt, G
as per Chapter Note 2, 'ores' nieans minerals of mineralogical
species actually used in the metallurgical industry for the
extraction of mercury, of th~ metals of heading 2844 or of the
metals of Section XIV or XV, even if they are intended for non- H
592 SUPREME COURT REPORTS [2015] 11 S.C.R.

A metallurgical purposes. As per this note, metals of Section
XV would ·be included in the term 'ores'. However, after the
insertion of Chapter Note 4, these two Notes, namely, Note 2
and Note 4 have to be read harmoniously. If we accept the
submission of the learned counsel for the assessee predicated
B on Note 2, then Note 4 even after its conscious inclusion, would
be rendered otiose which cannot be countenanced. Therefore,
Note 2, when seen along with Note 4, has to govern itself in
limited territory. On the basis of deeming fiction created by
Note 4, once we arrive at the conclusion that process of
C roasting of Ore amounts to manufacture and it creates a
different product known as Concentrate, for the purpose of
exemption notification, which exempts only 'Ores' it is not
possible to hold that Concentrate will still be covered by the
exemption notification. Therefore, harmonious construction
0
of Note 2 and Note 4 would lead us to hold that in those cases
when Note 4 applies and Ores becomes a different product, it
ceases to be Ores.

31.We, thus, are of the opinion that in the impugned
E judgment, the Tribunal has rightly arrived at the conclusion that
by virtue of Note 4, concentrate has to be necessarily treated
as different from ores which is deemed as manufactured
product after Molybdenum Ores underwent the process of
F roasting. Once we keep in mind that conversion of ores into
concentrate is considered as manufacture and, therefore,
becomes liable for central excise levy, exemption Notification
No. 4/2006-CE is to be interpreted in this light as the
Legislature has intended to treat ores and concentrates as
G two distinct items and Notification No. 4/2006-CE exempts
only 'ores', concentrates automatically falls outside the purview
of said notification. It is rightly argued by the learned senior
counsel for the Revenue that exemption notifications are to be
construed strictly and even if there is some doubt, benefit
H thereof shall not enure to the assessec but would be given to
M/S. STAR INDUSTRIES v. COMMISSIONER OF 593
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

the Revenue. This principle of strict construction of exemption A
notification is now deeply ingrained in various judgments of
this Court taking this view consii;tently.

32. In Mis. Navopanlndia Ltd., Hyderabadv. Collector
of Central Excise and another3 , this principle of s
interpretation of an exemption notification was summarised in
the following words:

"We are, however, of the opinion that, on principle, the
decision of the Court in Mangalore Chemicals -and in c
Union of India v. Wood Papers, referred to therein -
represents the correct view of law. The principle that in
case of ambiguity, a taxing statute should be construed
in favour of the assessee -assuming that the said
principle is good and sound -does not apply to the D
construction of an exception or an exempting provision;
they have to be construed strictly. A person invoking an
exception or an exemption provision to relieve him of
the tax liability must establish clearly that he is covered
by the said provision. In case of doubt or ambiguity. E
benefit of it must go to the State. This is for the reason
explained in Mangalore Chemicals and other decisions.
viz., each such exception/exemption increases the tax
burden on other members of the community
correspondingly. Once, of course, the provision is found F
applicable to him, full effect must be given to it. As
observed by a Constitution Bench of this Court in Hansraj
Gordhandas v. H.H. Dave, (1969) 2 SCR 253 that such
a Notification has to be interpreted in the light of the words
employed by it and not on any other basis. This was so G
held in the context of the principle that in a taxing statute,

'1994 (73) ELT 769 (SC) H
594 SUPREME COURT REPORTS [2015] 11 S.C.R.

A there is no room for any intendment, that regard must be
had to the clear meaning of the words and that the matter
should be governed wholly by the language of the
notification, i.e., by the plain terms of the exemption."

B 33. Without multiplying the case-law, we refer to the latest
judgment of this Court in IVRCL Infrastructure & Projects
Ltd. v. Commissioner of Customs, Chennai4 wherein this
principle is reiterated in_ the following manner:

c "4 .... We have heard learned Counsel for the parties.
We find that the first argument made by Shri
Lakshmikumaran can be disposed of immediately. The
subject matter before us is an exemption notification
issued under Section 25 of the Customs Act, 1962. The
D interpretative notes that have been referred to by Shri
Lakshmikumaran are In the Customs Tariff Act. Note 2(a)
referred to by Shri Lakshmikumaran reads as follows:

"2.(a) Any reference in a heading to an article shall be
E taken to include a reference to that article incomplete or
unfinished, provided that, as presented, the incomplete
or unfinished article has the essential character of the
complete or finished article. It shall also be taken to
include a reference to that article complete or finished
F (or falling to be classified as complete or finished by virtue
of this rule), presented unassembled or dis-assembled."

It is clear that such note will have no application to an
exemption notification which is issued under Section 25
G of the Customs Act. Therefore, the fact that an
unassembled plant which is incomplete but which has
the essential character of a complete plant is not the test

H • 2015 (319) ELT 194 (SC)
M/S. STAR INDUSTRIES v. COMMISSIONER OF 595
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

to be applied in the present case. On the other hand, the A
applicable test would be what has been laid down in a
catena of decisions. Two such decisions will suffice. In
Commissioner of Customs (Imports), Mumbaiv. Tullow
India Operations Ltd. (2005) 13 SCC 789 = 2005 (189)
E.L.T. 401 (S.C.}, this Court held: B

"34. The principles as regards construction of an
exemption notification are no longer res integra; whereas
the eligibility clause in relation to an ex.emption
notification is given strict meaning where for the C
notification has to be interpreted in terms of its language,
once an assessee satisfies the eligibility clause, the
exemption clause therein may be construed liberally. An
eligibility criteria, therefore, deserves a strict construction,
although construction of a condition thereof may be given D
a liberal meaning."

Similarly in G.P. Ceramics Private Limited v.
Commissioner, Trade Tax, Uttar Pradesh, (2009) 2 SCC
90, this Court held: E

"29. It is not a well-established principle of law that
whereas eligibility criteria laid down in an exemption
notification are required to be construed strictly, once it
is found that the applicant satisfies the same, the F
exemption notification should be construed liberally. [See
CTT v. DSM Group of Industries, (2005) 1 SCC 657 (SCC
para 26); TISCO v. State of Jharkhand (2005) 4 SCC
272 (SCC paras 42 to 45); State Level Committee v.
Morgardshammar India Ltd. (1996) 1 SCC 108; Novopan G
India Ltd. v. CCE & Customs (1994 Supp. (3) SCC 606);
A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala (2007) 2
SCC 725 and Reiz Electrocontrols (P) Ltd. v. CCE (2006)
6 sec 213."
H
596 SUPREME COURT REPORTS [2015] 11 S.C.R.

A Judged by this test, it is clear that a hot mix plant of the
type mentioned alone is exempt from payment of
Customs duty. Obviously, what is meant is that such plant
in its entirety mustbe imported albeit in an unassembled
form. Judged by this test, it is clear that the concurrent
B findings of fact of the Commissioner and the CESTAT
requires no interference by the Court inasmuch as both
authorities have held that a complete plant in an
unassembled form has not in fact been imported ... "

c 34. The Tribunal in the impugned judgment has also
examined the issue keeping in view the objective behind the
levy of CVD. Such a discussion proceeds as under:

"It will be useful at this juncture to examine the object of
D levy of additional Customs duty (CVD). This issue was
examined at great length by this Court in the case of
Hyderabad Industries Ltd. v. Union of lndia5 and this
Court held as follows:

E . "15. The Customs Tariff Act, 1975 was preceded by the
Indian Tariff Act, 1934. Section 2A of the Tariff Act, 1934
provided for levy of countervailing duty. This section
stipulated that any article which was imported into India
shall be liable to customs duty equal to the excise duty
.F for the time being leviable on a like article if produced or
manufactured in India. In the notes to clauses to the
Customs Tariff Bill 1975 with regard to clause 3 it was
stated that "Clause 3 provides for the levy of additional
duty on an imported article to counter-balance the excise
G duty leviable on the like article made indigenously, or on
the indigenous raw materials, components or ingredients
which go into the m~kiilg of the like indigenous artide.

H 5
1999 (108) ELT 321 (SC)
MIS. STAR INDUSTRIES v. COMMISSIONER OF 597
CUSTOMS (IMPORTS), RAIGAD [A.K. SIKRI, J.]

This provision corresponds to section 2A of the existing A
Act, and is necessary to safeguard the interests of the
manufacturers in India." Apart from the plain language
of the Customs Tariff Act, 1975 even the notes to clauses
show the legislative intent of providing for a charging
section in the Tariff Act, 1975 for enabling the levy of B
additional duty to be equa_I to the amount of excise duty
leviable on a like article if produced or manufactured in
India. Even though the impost under Section 3 is not
called a countervailing duty, there can be little doubt that
this levy under Section 3 of the Customs Tariff Act has C
been enacted to provide for a level playing field to the
present or future manufacturers of the like articles in
India."

(emphasis supplied) D

This object of levy has to be kept in mind while
interpreting notification No. 4/2006-CE for the purposes of levy
of CVD on concentrates. If the domestic manufacturer of
concentrates is liable to pay excise duty on conversion of 'ores' E
into 'concentrates' in terms of Note 4 to Chapter 26, can his
interests be sub-served when concentrates imported into India
are not levied to CVD at the same rate by interpretation of
Notification No. 4/2006 so as to construe that ores includes
'concentrates' and, therefore, no CVD is leviable. In our humble F
view, such an interpretation militates against the interests of
domestic producers and also the plain language of the
notification. Accordingly we hold that the benefit of exemption
under Notification No. 4/2006-CE will not be applicable to
'concentrates' imported from abroad." G

35. It was submitted by the learned counsel for the
assessee that the entire exercise is Revenue neutral because
of the reason that the assessee would, in any case, get Cenvat
H
598 SUPREME COURT REPORTS [2015] 11 S.C.R.

A credit of the duty paid. If that is so, this argument in the instant
case rather goes against the assessee. Since the assessee
is in appeal and if the exercise is Revenue neutral, then there
was no need even to file the appeal. Be that as it may, if that is
so, it is always open to the assessee to claim such a credit.
B
36. We, thus, do not find any merit in this appeal and
dismiss the same with cost.

Devika Gujral Appeal dismissed.