ORDER
Smt. Archana Wadhwa
1. The very short point involved involved in the present appeal is that the appellants cleared semi finished forged slabs falling under chapter 72 to their customer, M/s TRF Ltd. Jameshedpur on payment of duty of Rs.46,896.00. The said goods were rejected by their customer and returned to the appellants. On returns the appellants filed a D3 Intimation under Rule 173L of Central Excise Rules, 1944 to their jurisdictional Superintendent of Central Excise. The said slabs were subsequently reprocessed by the appellant and re-made as semi-finished forged products roughly shaped. The same (sic) again cleared on appropriate duty of Rs.64,467.00. Subsequently, the appellant claimed refund of duty of Rs. 46,896.00 originally paid by them.
2. The said refund claim lodged by the appellants was rejected by the Assistant Commissioner on the ground that the rejected slabs were re-made into different articles and cleared under different heading, As such, they were the goods of different class then what originally cleared by the appellants. As such, their refund claim was rejected in terms of provisions of Rule 173L (3)(iii) of the Assistant Commissioner did not succeed before the Commissioner (Appeals). Hence the present appeal.
3. I have heard Shri D.Jha, ld.Consultant for the appellants and Shri V.K.Chaturvedi, ld.SDR for the Revenue. The Commissioner of Central Excise (Appeals) in his impugned order has held as under:-
“In terms of Rule 173L (3) (iii)no refund shall be admissible in respect of duty paid on goods which are disposed of in any manner other than for production of goods of the same class. In other words for admissibility of refund under Rule 173L production of goods of the same class is a pre-requisite. In the instant case returned goods were of chapter heading 7207.90 which after reprocessing were cleared as `scrap’ and `parts of machines’ falling under chapter heading 8431.00. The returned/rejected goods `slab’ falling under 7209.90 and reprocessed goods falling under 7204.90 and 8431.00 cannot be treated as `goods of the same class’ as they do not fall within same tariff heading, as such refund not allowable under rule 173L. The Assistant Commissioner has correctly rejected the refund claim.”
4. As such, it is seen that the objection of the authorities below is that the returned/rejected slab and reprocessed goods cannot be treated as goods of the same class. The provisions of Rule 173L (3)(iii) requires that the goods received back and the goods subsequently cleared should be of the same class and nowhere specifies that they should also fall under the same chapter and/or tariff heading. As such, it is to be seen as to what is meaning of the expression `the same class. What was originally cleared by the appellants was semi finished forged blanks and subsequently they have been roughtly shaped but they remained to be forged blank. In the case of Trivani Glass Works Ltd. Vs. CCEx. Vs. Commr. of Central Excise, reported in 1992 (62) ELT 329 (Tribunal), the Tribunal has held that a receipt bank of the broker pieces of glass into the factory and transformation of the same into sheet glass by processing and re-melting would be covered by the provisions of Rule 173L. The expression ‘ of the same class’ has been used to denote that the goods received back and the goods subsequently cleared after being re-made and broudly confirmed to the same class and should not be altogether different items. As such, it does not mean that they should be identical goods. Admittedly, the duty has been paid in respect of the same items two times. As such, where the fact of payment of duty at the time of original removal of the goods, the identity of the returned goods and their subsequent removal of payment of duty again, are established by documentary evidence and refund claim is made in time, there should be no legal impedement to refund being granted. As such, keeping in view the overall facts of the case, I set aside the impugned order and allow the appeal with consequential relief to the appellants.
(Pronounced)