ORDER
G.A. Brahma Deva, Member (J)
1. The short point to be considered in this case is whether industrial scrap arising during the course of manufacture of steel products not melting scrap but comes within the ambit of products as can be used as re-rollable scrap. The Tribunal in the case of Tata Iron and Steel Co. Ltd. reported in 1987 (30) E.L.T. 771, following the earlier Order-in-Appeal No. 142/76 and appeal 44/85 as per Order Nos. 111-112/86, dated 24-2-1986 held that the goods described as scrap would take it away from the ambit of products though these are of inferior standard. Accordingly, it was held that item in question is classifiable as iron and steel products under T.I. 26 AA and not under T.I. 26A. It was brought to our notice that the view taken by the Tribunal has been set aside by the Supreme Court in the case of Tata Iron and Steel Co. Ltd. v. C.C.E. reported in 1995 (75) E.L.T. 3 holding that iron and steel scrap composed of arising of steel mills such as cuttings of rails, billets, plates, axles, channels, etc. which was found by the Tribunal to have been remelted satisfies the test of being re-melting scrap irrespective of its size or its classification in iron and steel Controller’s price circulars or the fact it closely resembled defective blooms or slabs or bars or channels or the fact that it could theoretically be industrial scrap. Accordingly, it was held that item, in question is classifiable as melting scrap under item 26 and not as semi-finished steel under item 26AA (i) of erstwhile Central Excise Tariff. It was observed therein that semi-finished may mean something between raw-material and finished product but it cannot be dispatched as scrap. The attempt of the department, therefore, to levy duty on scrap under item 26AA was not correct. Further, it was also brought to our notice that the department has issued a circular as per findings and F. No. 131/40/87-CX. 4, dated 21-8-1987 wherein it was stated that “in our view the rail cuttings cannot fall under Heading No. 7302.10 since the heading is applicable to rail track construction materials. By no strength of imagination the rail cuttings can be called as track construction material. They can be more appropriately classified under Heading 7210.10 which covers angles, shapes and section the definition of which has been given in the chapter note 72. If they fall under Heading No. 7210.90 the exemption under notification 208/83 is available.”
2. In view of the ratio of the decision of the Apex Court and the circular issued by the Board, it is clear that item, in question, is classifiable under Chapter 72 not under Chapter 73. Accordingly, we hold that they fall under Heading 7210.90 and the exemption under Notification 208/83 is available. Accordingly the appeal is allowed with consequential relief, if any.