ORDER
U.L. Bhat, J. (President)
1. These appeals are directed against common Order-in-Appeal Nos. M. 953-954/AHD/-523-524/86, dated 16-1-1987 passed by the Collector (Appeals), Bombay disposing of two appeals filed by the common respondent herein against two separate orders passed by the Assistant Collector, Anand rejecting two classification lists filed by the respondent.
2. Respondent is engaged in the manufacture of certain kinds of aluminium articles and filed classification list 11/84 with effect from 26-3-1984 claiming that the goods fell under erstwhile T.I. 27 and benefit of exemption Notification 43/75 dated 1-1-1975 was available. The particulars of aluminium articles are as follows:
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SI. No. Description of article T.I.
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1. Door 27(b)(e)
2. Windows 27(b)(e)
3. Structures such as Fixed Glazings, Partitions, 27(b)(e)
Cabins, Boxes, etc.
4. Chairs 27(b)(e)
5. Hospital Furniture 27(b)(e)
6. Cask of Aluminium of a description commonly 27(f)
used for the conveyance of manmade fibre by
Petrochemical Ltd. Co. (Explanation I below
T.I. 27)
7. Scuttles 27A(ii)
8. Waste and Scrap 27(aa)
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The Assistant Collector after issuing show cause notice and hearing the respondent passed an order holding that all the articles fall under erstwhile T.I. 68 and not erstwhile T.I. 27 and rejecting the classification list. The respondent filed a fresh classification list reiterating that the articles manufactured attract erstwhile T.I. 27. The particulars are as follows :-
1. Shapes & Section of Aluminium out of duty paid wrought angles, shapes and sections, sheets, blanks, pipes and tubes and hollow sections prepared for subsequent fabrication of Door Frames, Window Frames, Structural Work and Scuttle. T.I. 27(3)
2. Waste & Scrap of Aluminium T.I. 27(2)
Respondent claimed full exemption under Notification No. 183/84. Assistant Collector after issuing show cause notice and personal hearing held that the articles do not attract T.I. 27 but attract T.I. 68 and rejected the second classification list. Respondent filed an appeal before the Collector (Appeals) against this order.
3. Collector (Appeals) heard the two appeals together and passed a common order setting aside both orders of the Assistant Collector and allowing the appeals. He was of opinion that all the articles manufactured by the respondent fell under T.I. 27 in view of two decisions of the Tribunal referred to therein. Collector of Central Excise has filed the present two appeals against the common order passed by the Collector (Appeals). We have heard both sides.
4. According to Shri M. Jayaraman, JDR, all the articles manufactured by the respondent fell under erstwhile T.I. 68 and therefore necessarily the articles did not fall within the purview of the two exemption notifications, namely, 43/75 and 183/84. He also pointed out that while in the first classification list the respondents declared Doors, Windows, Partitions, Cabins, Boxes, Chairs, Hospital Furniture, Cask and Scuttles specifically, the second classification list did not declare such products but made a general declaration regarding shapes and sections prepared for subsequent fabrication of Door Frames, Window Frames, Structural Work and Scuttle. In other words, according to him, even after the second classification list the respondent continued to manufacture the same goods as described in the first classification list but declared them at a stage prior to actual fabrication of the various items.
5. Item 27 deals with Aluminium and refers to the following :
“(a) (i) In any crude form (including ingots, bars, blocks, slabs, billets, shots, pellets).
(ii) Wire bars, wire rods and castings not otherwise specified.
(aa) Waste and scrap.
(b) Manufactures, the following, namely, plates, sheets, circles, strips, shapes and sections, in any form or size, not otherwise specified.
(c) Foils (whether or not embossed, cut to shape, perforated, coated, printed, or backed with paper or other reinforcing material) of a thickness (excluding any backing) not exceeding 0.15 mm.
(d) Pipes and tubes, other than extruded pipes and tubes.
(e) Extruded shapes and sections including extruded pipes and tubes.
(f) Containers, plain, lacquered or printed, or lacquered and printed.”
6. We will examine the articles declared in the first classification list and compare them with the description given in the erstwhile T.I. 27. Doors and Windows, Glazings, Partitions, Cabins, Chairs and Hospital Furniture would not fall under any of the sub-items of Item 27. However, Cask, Scuttle and Box would fall within the scope of the expression “container” contained in sub-item (f) of Item 27. Waste and scrap is specifically taken in by sub-item (aa) of Item 27. Thus we find that Items 1,2,4,5 and 3 except ‘box’ are not covered by Tariff Item 27, while the description in Items 6, 7, 8 and ‘box’ in Item 3 fall under the scope of Tariff Item 27. Notification 43/75 will apply only to items of aluminium specified in Column 5 of the Table to the notication and falling under any of the sub-items of Tariff Item 27. We have already indicated that Items 1, 2,4,5 and box in Item 3 of the classification list would not fall under Tariff Item 27 (necessarily, therefore, they fall under erstwhile Tariff Item 68). These items therefore cannot attract the benefit of notification. On the other hand, since Items 6 to 8 and the ‘box’ in Item 3 of the first classification list fall under Tariff Item 27 and they fall under particular category “Aluminium articles” under Item 4(b) of the Table to the notification, those goods will enjoy the benefit of exemption if the conditions stipulated in column 5 of the Notification are satisfied.
7. The second classification list contains two items which we have already adverted to. It refers only to shapes and sections at a stage prior to fabrication of readymade items as also waste and scrap. These items would fall under sub-item (aa) and (b) of Item 27. Notification 183/84 is also restricted to articles which fall under Tariff Item 27. Shapes and sections of aluminum attract Serial Number 5,6 or 8 of the Table to the notification while waste and scrap may fall under serial number 3 or 4 of the Table to the Notification. Even so the goods shown in the second classification list would enjoy the benefit of notification only if the conditions stipulated in column 5 of the Table to the Notification are satisfied.
8. We find that the Collector (Appeals) has not considered the articles described in the two classification lists with reference to the description of articles in Tariff Item 27 as well as the Tables to the notification. He was content in placing reliance on two decisions of the Tribunal. One of the decisions is Ajit India Pvt. Ltd. v. Collector of Central Excise, Bombay -1983 ECR1771D where the question was not whether the articles of aluminium fell under Tariff Item 27 or Tariff Item 68 but whether there was any manufacturing activity carried on in the factory or at the site. Therefore, the decision is not helpful to adjudicate the present dispute. The second decision is the one in Ajit India Pvt. Ltd. v. Collector of Central Excise, Bombay -1985 (19) E.L.T. 541 (Tribunal), where the question was whether the appellant cleared the windows, doors, shutters from the factory in fully assembled and ready to assemble condition, processed aluminium sections identifiable as component parts of windows, doors etc. without payment of duty or whether the goods cleared were semi-finished non-excisable goods and were aluminium sections which in spite of the processes like punching, drilling etc. remained only aluminium sections which could not be commercially identified as component parts excisable under T.I. 68. This decision is also not helpful to adjudicate the present dispute since it is common case of both parties that the articles described in the two classification lists are excisable articles manufactured in the factory of the respondent. The dispute is only with reference to the correct tariff entry and the benefit of the two exemption notifications. This dispute could not have been decided by the Collector (Appeals,) with the assistance of the two decisions referred to above.
9. We have already held that some of the items described in the first classification list and the items described in the second classification list fell under Tariff Item 27 and some of the items described in the first classification list fell under erstwhile Tariff Item 68. Articles which attract erstwhile Tariff Item 68 to do not enjoy the benefit of either of the notifications in question. The question whether those items held by us to attract erstwhile Tariff Item 27 enjoy the benefit of the two notifications will have to be considered afresh with reference to the language and the conditions of the notification. For this purpose the matter has to go back to the jurisdictional Assistant Commissioner. We therefore set aside the impugned orders passed by the Assistant Collector and the common order passed by the Collector (Appeals) and remand the cases to the jurisdictional Assistant Commissioner for decision afresh in accordance with law and in the light of the observations in this order after due notice to the respondent.
10 The appeals are allowed as indicated.