ORDER
G.P. Agarwal, Member (J)
1. This appeal is directed against the impugned Order-in-Appeal No. 1027/Cal/83, dated 5-10-1983, passed by the Collector (Appeals) of Central Excise, Calcutta.
2. Shortly put, the facts of the case are that, the appellants Alok Udyog Vanaspati & Plywood Ltd. manufactures Plywood of various description and use/ nomenclature. They filed their classification list and price list for the products which were approved. The monthly returns in Form RT 12 for and upto the month of November, 1979 was finally assessed by the Superintendent concerned on 17-12-1979 without raising any dispute or demand about the duty paid on the Plywood products manufactured and removed from the factory till November, 1979. However, it appears that on account of certain Trade Notices the Department formed an opinion that the term ‘Structural Plywood’ figuring in Notification No. 55/79, dated 1-3-1979 (as amended) would also cover “Concrete Shuttering Plywood”. Accordingly, the Superintendent, Central Excise concerned vide his letter dated 24-3-1980, advised the appellants to refrain from effecting clearance of Shuttering Plywood as Commercial Plywood under T.C. 16B (ii) till Form 1 and price list is submitted and also asked the appellants to submit a statement of quantity of Shuttering Plywood so far cleared. This was followed by a show cause-cum-demand notice dated 7-4-1980, whereby the Department asked the appellants to pay the differential duty alleging short levy on goods described in G.P. 1 as “Commercial Plywood (shuttering)” during the period from 12-10-1979 to 30-11-1979. In the said show cause notice, reference to Trade Notice No. 230/Plywood/4/79, dated 12-10-1979 was made and the duty was claimed on “Concrete Shuttering Plywood” cleared as “Commercial Plywood”. The appellants contested the show cause notice submitting that they at no stage manufactured concrete Shuttering Plywood highlighting that concrete Shuttering Plywood is a totally different article known as such in the trade and described in IS 4990/1969 whereas Commercial Plywood (shuttering) manufactured according to IS 303/1975 is quite different and known as such in the trade for external use. However, the Asstt. Collector vide his Order-in-Original No. PW(16B)30/CAL-VI/74/35-AC/80, dated 19-9-1980 issued on 3-10-1980 confirmed the demand holding the appellants as manufacturer of Concrete Shuttering Plywood and identifying the same as structural plywood. Against that order of the Asstt. Collector, the appellants filed their appeal before the Appellate Collector who rejected the same vide his Order-in-Appeal No. 981/Cal/81. Aggrieved, the appellants filed their revision petition before the Government of India, which was allowed by Order No. 796 of 1981 and the case was remanded to the Appellate Collector for disposal on merits. Thereafter, the Collector (Appeals) heard the matter and rejected the appeal vide his impugned order dated 5-10-83. Hence, the present appeal. The respondents have also filed their cross objections.
3. Shri P.R. Dastidar, learned consultant, arguing on behalf of the appellants submitted that at no stage and during the relevant period the appellants manufactured Concrete Shuttering Plywood in their factory or elsewhere on their behalf. He also submitted that under Notification No. 55/79, dated 1-3-1979 (as amended) Commercial Plywood means all varieties of Plywood other than (i) Decorative Plywood (ii) Fireproof Plywood (iii) Flameproof (iv) Structural Plywood (v) Marine Plywood (vi) Aircraft Plywood (vii) Plywood for teachest conforming to IS standard (viii) Plywood for teachest packed in sets supplied directly to a tea factory, which would suggest and confirm that even ‘Concrete Shuttering Plywood’ (IS 4990/1969) having been known in trade as such and not as Structural Plywood, is/was Commercial Plywood for material purpose of levy & collection of duty of Excise. To butteress his submission, he cited the case of Collector of Central Excise v. Sudershan Plywood Industries Ltd., 1989 (41) ELT 671, wherein it was also held by the Tribunal that Shuttering Plywood is different from Structural Plywood and they are not the same thing in commercial and trade parlance, and therefore, benefit of exemption of Notification No. 55/79, dated 1-3-1979 (as amended) would be available to the manufacturer. Alternatively, he also submitted that classification on the basis of the Trade Notice cannot be made and further such Trade Notice cannot have the retrospective effect and cited the various authorities in support of his contentions.
4. In reply Smt. Vijay Zutshi, learned Joint CDR submitted that, in view of the said decision of the Tribunal rendered in the case of Collector of Central Erase. v. Sudershan Plywood Industries Ltd., Supra, could not be sustained before the Tribunal, though she would reiterate all the contentions which were raised on behalf of the Revenue in that case. She with her usual fairness also submitted that, if on merits the appeal is to be allowed then in that case the alternative arguments advanced by the learned consultant for the appellants regarding the validity of the classification made on the basis of the Trade Notice and its effect, i.e. as to whether such Trade Notice has the retrospective or prospective effect need not to be gone into.
5. We have considered the submissions. From the record we find that there is no acceptable evidence on the record to hold that the appellants were manufacturing Concrete Shuttering Plywood and the findings of both the authorities below on this point appears to be based on presumption and conjectures. Even otherwise, in view of the decision rendered by this Tribunal in the case of Collector of Central Excise v. Sudershan Plywood Industries Ltd., Supra, it cannot be held that the Shuttering Plywood or Concrete Shuttering Plywood would fall in the category of Structural Plywood so as to direct higher central excise duty at the rate of 30% on the real value. In this view of the matter, we are not called upon to decide the alternative contentions raised by the learned consultant for the appellants.
6. In the result, the impugned order passed by the authorities below is set aside and the appeal is allowed with consequential relief, if any. The cross objections which are in the nature of reply to the grounds taken in the memorandum of appeal also stands disposed of by this order accordingly.