ORDER
S.D. Jha, Member (J)
1. The question for decision in these seven appeals and the Cross-objection filed by the Respondents is whether ‘D.K. Coils, Condenser coils, shell and Tube Condenser, Chillers, Head Exchangers, heat inter-changers, I.C.C Accumulation coils of different sizes (hereinafter referred as goods) manufactured by the respondents are classifiable under Tariff Item No. 29-A(3) of the Central Excise Tariff or under T. I. No. 68 ibid and whether any part of the refund claimed by the Respondents is time-barred.
2. The respondents Company is inter alia engaged in the manufacture of goods described above since 1962. The goods were classified by the jurisidic-tional Assistant Collector of Central Excise under T.I. No. 29A(3) of the C.E.T. Later the respondents on the basis of some Court judgment applied for refund claiming that the goods were not classifiable under Item 29A(3) but under Item 68. The refunds claimed numbering seven related to period 1-7-1977 to 20-12-1980 and totalled in all to Rs. 22,32,785.84. The Assistant Collector of Central Excise, Calcutta by his order dated 10-3-1982 rejected all the claims for refund and held that the goods in question were classifiable under T.I. 29A(3), as already assessed and not under T.I. 68, as claimed. On the Respondents filing Revisions, the Collector of Central Excise, Calcutta relying on two judgments of the Allahabad High Court, by his order dated 28-8-1982 upheld the respondents claim for classification of the goods under T.I.68 but limited the refund claims to the period 1-7-1979 to 20-12-1980 amounting to Rs. 10,53,339.16 and rejected the rest of the claims as barred by limitation under the Excise Rules.
3. The Central Board of Excise and Customs, noticed that the two judgments of the Allahabad High Court relied upon by the Collector have not been accepted by the Government of India and an S.L.P. has been filed in the Supreme Court of India and Supreme Court has already stayed both the judgments. The Board under Section 35-E(1) directed the Collector of Central Excise, Calcutta to file an appeal before the Tribunal. The present appeals are for setting aside the order in Revision No. 21-27/1982, dated 28-8-1982 passed by the Collector of Central Excise, Calcutta. The respondents have also filed cross-objection claiming that they should have been granted full refund for the entire period and part of their claim should not have been rejected.
4. In the grounds of appeal, it is mainly urged that the goods-Refrigerating and Air-conditioning Machinery are parts of Refrigerating and Air-conditioning Machinery falling under T.I. No. 29A(3) of the First Schedule of the Act. For applicability of this sub-item, it is not necessary that these parts should be parts of ready assembled units ordinarily sold or offered for sale.
5. At the hearing of the appeal, Sh. Abdul Khader, Senior Advocate for the appellants took us through ‘Craies on Statute Law and argued that the words “which are ordinarily sold or offered for sale as ready assembled units” used in sub-items (1) and (2) of Item No. 29A could not be used to control the plain and simple meaning of sub-item (3) “parts of Refrigerating and Air-conditioning appliances and machinery all sorts”. As for Allahabad High Court’s judgments relied upon by the Collector of Central Excise, Calcutta in his order, Sh. Khader argued that these decisions were distinguished and not followed by Gujarat High Court in its latest decision in the case of Anil Ice Factory and Anr. v. Union of India and Ors., 1984 (15) E.L.T. 333 (Gujarat). He also relied on two decisions of the Tribunal in the case of Madan Cold Storage, Kanpur v. Collector of Central Excise, Kanpur (Order No. 218/1984-B)-[1985(19) E.L.T. 265 (Tribunal) and Chibramau Cold Storage, Chibramau, Distt. Farrukhabad v. Collector of Central Excise, Delhi (Order No. 220/1984-B.-[1985 (19) ELT 269 (Tribunal)]. He further argued that in these two decisions, the Bench had followed the Gujarat High Court decision and not the Allahabad High Court judgments.
6. Sh. N. Khaitan, Advocate appearing on behalf of the respondents agreed that after the Tribunal in the two cases referred to above following the Gujarat High Court decision held that the words “Ordinarily sold or offered for sale as ready assembled units” would not control the meaning of sub-item (3) of item 29A(2), the respondents would have no case before the Tribunal. He also made it clear that the respondents in the event of decision being adverse to them reserve their right to challenge the decision in appeal before the Supreme Court to get a decisive finding about the correctness of the Allahabad High Court judgments or the Gujarat High Court judgment.
7. In Anil Ice Factory and Anr. v. Union of India and Ors. (Supra), the High Court of Gujarat disagreed with the Allahabad High Court’s decision in Mother India Refrigeration Industries Pvt. Ltd. v. Supdt. of Central Excise, 1980 ELT 600 (Allahabad)-on which the Collector of Central Excise relied for passing the order under challenge. The Gujarat High Court inter alia held that the words “manufactured for sale” could not be read in entry No. 3 by drawing upon the theory of “taking colour” which had no application in the case. They observed that injecting these words would be re-writing this Section and they would be legislating which they could not do. They held that there was no warrant for drawing the inference that it related to goods which were manufactured only for the purpose of sale and not for the purpose of use in the installed unit. The Tribunal in the two decisions referred to above followed the Gujarat High Court judgment in preference to the Allahabad High Court judgment.
8. In view of the above, following the Gujarat High Court judgment and the two decisions of the Tribunal, we hold that the goods are classifiable under T.I. 29A(3) and not under Tariff Item 68 of the C.E.T. as held by the Collector of Central Excise, Calcutta. The order passed by the Collector in Revision is set aside and that of the Assistant Collector restored. In view of this the cross objection filled by the respondents does not survive for consideration and becomes infructuous. The appeal is allowed and the cross-objection dismissed.