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2020 ] COMMR. OF C. EX. & SERVICE TAX, JAMMU & KASHMIR v. GRAVITA METALS 175
by the other manufacturers as well as M/s. GM and report on that effect was
called by this Tribunal from the Ld. AR and the report shows that duty is being
collected on the process of M/s. GM, the appellant herein on the same process
held to be manufacture. He relied on the report in the case of Chloride Metals,
Pune, a 100% subsidiary of Excide Industries Limited, duty is being collected on
the identical process. This is of relevance inasmuch as the Tribunal in the case of
Exide Industries - 2003 (154) E.L.T. 110 has held that, making lead alloy ingots
from refined lead, does not amount to manufacture and this decision has been
relied upon by the Commissioner in the impugned order. Therefore, it is his
submission that it is clear that for uniformity, manufacturers similarly placed,
cannot be discriminated and it would be in violation of Article 14 of the Constitu-
tion of India, as held by the Hon’ble Apex Court in the case of Unipatch Rubber
Limited v. CCE - 2011 (272) E.L.T. 340 (S.C.) and Damodar J. Malpani v. CCE - 2002
(146) E.L.T. 483 (S.C.). Hence M/s. GM cannot be discriminated only because
Revenue is seeking to deny the benefit of Notification No. 56/2002-C.E. while all
over the country, the duty is being collected on identical process being carried
out, including the factory of M/s. GM situated in Gujarat at Gandhidham.
7. He further submitted that the process of making refined lead from
unrefined lead shows that when unrefined lead is obtained, it has impurity rang-
ing from 79.34% to 95.64% and in other test report, it is ranging from 97.84% to
99.42%. It is pertinent that the refined lead ingots are made after going to ground
zero, namely the metal is totally melted and thereafter to remove impurities,
chemically the same is treated and the purity of the lead obtained to the highest
degree. The refined lead ingots are defined as per the sub-heading note to Chap-
ter 78, requiring composition of 99.9% of lead and also limiting the content by
weight and percentagewise of various other elements like silver, arsenic etc.
Therefore, the refined lead being made by the M/s. GM has the exact specifica-
tions, and is a commercially recognised as separate identifiable product. After
getting the refined lead, thereafter the same is again melted to make it alloy lead
ingots. That, each manufacturer of batteries has its own specifications of the re-
fined lead and lead alloy ingots, and these are made to very exact specifications,
including the use of spectrometric analysis. The case of M/s. GM is different
from the case of Exide Industries (supra) wherefrom the pure lead ingots only al-
loying was done, whereas M/s. GM is starting its process from unrefined lead
ingots containing huge number of impurities. Chapter 78 itself classifies refined
lead and lead alloys separate from unrefined lead, as separate commercial prod-
ucts obtained by a manufacturing process. In fact the HSN itself specifies that the
refined lead is used to manufacture lead alloys. The recognition for use in the
batteries, the specification of the lead should be very high as per Indian Stand-
ards specifications i.e. IS 12292 which requires a purity of 99.96%. The literature
shows that the industry for making batteries in United States collapsed as com-
pared to their counterpart factories in Europe, in the case of Valve regulated lead
acid batteries, as primary lead was not used but secondary lead was used. In fact,
Exide Industries itself suffered in the United States due to the use of lead in the
batteries which were not of exacting specifications. Hence, the purity of the lead
is very essential for the life of the batteries and there can be no compromise on
this issue. The opinion of the Lead and Zinc Development Association submitted
to the Commissioner by M/s. GM specifically confirms the requirement of lead
of the highest purity to make the lead acid batteries. Against all this, the Com-
missioner has relied on the evidence of one Mr. Sunil Bhat, who is not aware of
the melting point of lead and its atomic number/weight. He was not aware of IS

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