1997(08)LCX0185

IN THE CEGAT, EASTERN BENCH, CALCUTTA

Shri P.C. Jain, Member (T) and Smt. Archana Wadhwa, Member (J)

COMMISSIONER OF C. EX., CALCUTTA-I

Versus

DEEPAK METAL WORKS PVT.LTD.

Order No. A-1078/Cal/97, dated 26-8-1997 in Appeal No. E/941/88-B and E/Cross/171/88

Advocated By : Shri S.N. Ghosh, JDR, for the Appellant.

Shri S.K. Roy Choudhury, Advocate, for the Respondent.

[Order per : P.C. Jain, Member (T)]. - Briefly stated the facts of the case are as follows :

1.1 The respondents herein filed classification list on 18th June, 1986 effective from 1-3-1986 “under protest pursuant to classification as ordered by the Collector”. The said classification depicted the description of the goods, headings and sub-headings as below :

1.2 The Assistant Collector modified classification in respect of Item B(i) and C and approved the classification list on 15-12-1986. The appellants (respondents herein) thereafter filed an appeal which resulted in Order-in-Appeal dated 24-2-1987 (issued on 29-4-1987). By the said Order-in-Appeal, the Collector (Appeals) remanded the matter in respect of products described under B(ii) i.e. cast rods of copper other than brass. Observation of the Collector (Appeals) in the said order dated 24-2-1987 are as follows :-

“The next point for determination is the classification of Cast Rod (unwrought) i.e. whether it will fall under sub-heading No. 7410.00 of Heading No. 74.10 as claimed by the appellants or under sub-heading No. 7403.19 of Heading No. 74.03 as contended by the Asstt. Collector. Wrought Bars and Rods (including wire rods) have been defined in Note 1(ii) of Chapter 74 and include, amongst other things, any cast or sintered products, of the same forms and dimensions, which have been subsequently worked after production (otherwise than by simple trimming or de-sealing), provided that they have not thereby assumed the character of any article or product falling under any other heading. In the instant case, as claimed by the appellants, the Cast Rod of Copper has not been worked upon after its production otherwise than by simple trimming and de-sealing. In terms of the Note I(ii) of Chapter 74 (supra), an article to qualify for classification under Heading No. 74.03 has to be wrought Bars and Rods (including wire rod) within the meaning assigned to it. Asstt. Collector’s order has not justified its classification under Heading No. 74.03 sub-heading No. 7403.19 in details and to that extent it is not in order. This, therefore, calls for re-examination with reference to any processing undertaken for the purpose of proper classification”.

1.3 At this stage, learned JDR, however, points out that the Revenue contests that these observations do not pertain to Item B(ii) i.e. cast copper rods other than brass. In their view, this could never be an issue before the Collector (Appeals) inasmuch as the tariff heading for this item was never modified by the Assistant Collector in the Order-in-Original and, therefore, there could be no grievance of the respondent herein to file appeal against that item. However, the learned Advocate Shri S.K. Roy Choudhury at this stage itself draws our attention to the protest letter dated 18th June, 1986 while filing the classification list and points out that the whole classification list filed by them was under protest and, therefore, the tariff item put by them in the classification list being on the dictation of the Assistant Collector vis-a-vis as it existed before 1986 was under challenge.

1.4 Pursuant to the said Order-in-Appeal dated 24-2-1987, the Assistant Collector examined the classification by visiting the factory. The said Assistant Collector in the Order-in-Original dated 12-6-1987 (16-6-1987) has given the following process of manufacture in respect of cast brass/copper rods :-

“During my visit to the Factory, it was observed that the assessee cast brass/ copper rods in sand moulds of various sizes both in respect of rods and other items viz. bush, plates etc. After removal of the Cast products from the moulds simple trimming/desealing operation were carried out on an old lathe machine mostly by using sand paper. There was no machine or equipment which could help in fine machining of the cast products in order to enable it to be finished to any fine extent for final fitment to a machine. In this view of the matter it could not be said that the goods in question has crossed the crude stage.” [Emphasis supplied by the learned Advocate for the respondents]

1.5 However, on the basis of the aforesaid inspection report, the Assistant Collector classified the product declared at B(i) as mentioned above in the classification list but did not classify the product B(ii) which was the subject matter of dispute and as directed by the Collector (Appeals) was required to be classified in de novo proceedings. The respondent herein thereafter again filed an appeal against the de novo order dated 12-6-1987 (16-6-1987). The Collector (Appeals) accepting the plea of the respondent and on the basis of the manufacturing process set out by the Assistant Collector classified the product “cast copper rods other than brass as described under Item B(ii)” as falling under sub-heading 7410.00 i.e. as unwrought cast copper rods. This is against this classification of the lower appellate authority that the Revenue has filed this appeal.

1.6 One of the grounds of the appeal as already set out above, i.e. there was no dispute in respect of this item in as much as the Assistant Collector while approving the impugned classification list did not make any change in classification of this Items B(ii), the objection of the ld. Advocate has also been set out above with which we agree. The other ground of the appeal by the Revenue is that on the same process of manufacture, the Collector (Appeals) has classified the cast rods of brass under 7403.11 which means, according to Revenue, that the Collector (Appeals) has accepted the fact that cast rods of brass are wrought copper rods. Since this classification of cast brass rods has not been challenged by the respondents, therefore, the fact of their being wrought cannot also be challenged.

2. Learned Advocate for the respondent, however, submits that the process of manufacture has been set out by the Assistant Collector in his Order-in-Original dated 12-6-1987 (16-6-1987) very clearly. It has been stated therein that no machining beyond the process of trimming and de-sealing has been carried out. It is clearly unwrought copper rod other than of brass and, therefore, the classification has been rightly made by the lower appellate authority. The ground taken by the Revenue is not correct inasmuch as it is for the assessee to file an appeal or not to file an appeal against any particular classification but that does not mean that they have accepted the process of manufacture different from what has been set out by the Collector.

3. We have carefully considered the pleas advanced from both sides We are inclined to agree with the submission of the learned Advocate for the respondents The argument that the respondents have not challenged the classification of cast rods of brass cannot unsettle the process of manufacture as stated by the Assistant Collector in his order dated 12-6-1987 ( 16-6-1987). This argument does not hold water because the question of filing an appeal and not filing an appeal is a matter entirely within the discretion of the respondents. We have to go by the process of manufacture as set out by the Assistant Collector. Keeping in view the process undertaken by the respondents not going beyond the stage of trimming and de-sealing, classification of cast copper rods other than of brass under sub-heading 7410.00 is correct. We, therefore, dismiss the appeal of the Revenue.

4. Since the cross-objections are only in the nature of comments on the appeal of the Revenue and they are also not maintainable inasmuch as the classification contended by the respondents was accepted by the lower appellate authority, therefore, the cross-objections are also dismissed as not maintainable.

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Equivalent 1998 (103) ELT 646 (Tribunal)

Equivalent 1997 (023) RLT 0385