ORDER
Gowri Shankar, Member (T)
1. Appellant manufactures metal containers. It manufactured these containers out of cold rolled steel coils. These are cut into required length and thereafter punched or cut into required sizes and shapes of material. The question for consideration in this appeal is the classification of the remnant metal. The manufacturer has claimed this to be scrap and waste metal classifiable under heading 72.04 of the tariff and claimed benefit of Notification 171 /88. The notification exempts from duty waste and scrap arising from goods of Chapter 72, provided no Modvat credit had been taken on the duty paid on these goods. Notices were issued to the manufacturer proposing that the remnants were not in fact scrap but strips. The basis for this allegation was that the goods were described in some of the invoices for their clearance as “CRCA scrap strips” and the goods had been sold at “higher rate” and that “these will be utilised for some other purpose of manufacture of other articles”. The assessee’s stand in the reply to the notice was that the goods were waste and scrap. They were described as scrap and sold to scrap dealers. There was nothing to show that the goods were classifiable under the heading claimed by the department 72.09 as flat rolled product. The Assistant Commissioner did not accept this contention. He however, ordered classification of the goods not under heading 72.09 of the tariff, proposed in the notice but under heading 7211.90. This was for the reason that he found the width of the remnants not exceeding 600 mm. His view has been confirmed by the Commissioner (Appeals). Hence this appeal.
2. It is not possible for us to agree that there is sufficient material to conclude that what has been manufactured are strips. The goods do not conform to the dimensional specifications prescribed in Note 1(k) of Chapter 17 (sic) of the tariff laid. The material before us only indicates that the maximum possible width of these strips was 532 mm. There is nothing about the thickness of the strips, and proportion between the thickness and width of each piece, so as show that they conform to the tariff requirement. This objecting having been raised in the reply to show cause notice remains unanswered.
3. The classification which was proposed in the notice under heading 7211.90 is different from the one confirmed, 7211.91. The question of quoting a wrong rule which has been used by the Assistant Commissioner to tide over this objection raised by the assessee is no answer. This is not a case of citing a wrong rule but a specific classification. It is settled that a classification other than the one proposed in the notice a different classification cannot be determined. [See decision of the Tribunal in CCE v. Vipin Silk Mills -1999 (113) E.L.T. 422].
4. In any event, there is material to conclude that the metal was anything other than scrap. As we have noted there is nothing to show that the dimensional specifications contained in note 1(k) were satisfied; nor there was any basis to say that the goods were capable of being used as flat rolled strips. No example is cited as to what goods could be made out of them. The contention that the goods were sold at “higher rate” is meaningless – higher than what? As against this, the fact of sale^of these goods to scrap dealers is not denied.
5. We are therefore satisfied that what was manufactured was nothing other than scrap. The advocate for the appellant agrees that the benefit of Notification 171/88 will not be available in the light of the decision of the Larger Bench of the Tribunal in Universal Containers v. CCE, 2000 (120) E.L.T. 538 and undertakes to pay whatever duty leviable on such containers. Subject to this undertaking, we allow the appeal and set aside the impugned order.