Decided on May 29,1991

ChandrasAnd#39; Chemical Industries ... Appellant
COLLECTOR OF C. EX. Respondents


N.K. Bajpai, Member (T) - (1.) BRIEFLY stated the facts are that the appellants have been manufacturing Dencol, an adhesive since 1977, and have been paying duty on it under Item 15A(l)(ii) of the erstwhile Central Excise Tariff after approval of their Classification Lists. As a result of the visit of an Audit Party to the appellants' premises, the Assistant Collector, Central Excise issued a Show Cause Notice on 31.7.1982 to the appellants asking them to show cause why duty of Rs. 79,640/ - (basic) and Rs. 3982/ - (special) should not be realised under Section 11A on the ground that in the manufacture of the adhesive, an intermediate product - Polymer - had been formed which was liable to duty under Item 1SA(1) (ii) at the point of its clearance for use as input in the manufacture of the adhesive. While the proceedings in that matter were in progress, the appellants on learning that FEVICOL, an adhesive manufactured by their competitors, M/s. Pidilite Industries Pvt. Ltd., Bombay, was being assessed to duty under Item 68, submitted a revised Classification List for classification of their product 'DENCOL' also under Item 68 on 21 -7 -1983. Proceedings were initiated on this Classification List by the Assistant Collector who issued a show cause notice on 9 -9 -1983 asking them to show cause why DENCOL adhesive should not be assessed under Item 15A(1). While the Assistant Collector decided by an order dated 30 -6 -1984 that the Polymer which came into existence at the intermediate stage was liable to duty under Item 15A(1) as per amended Rules 9 and 49, the final product Dencol adhesive was dutiable under Item 68. An appeal against this order has been dismissed by the Collector of Central Exise (Appeals), Calcutta and the matter has now come up separately before the Tribunal.
(2.) WHILE the proceedings were continuing before different authorities, the appellants, in the present case, submitted on 13 -3 -1984 as many as 10 revised Classification Lists covering the period 1977 to 1983 claiming classification of Dencol adhesive under Item 68. The proceedings before the Assistant Collector resulted in an order being passed by him on 29 -7 -1985 rejecting their request for revision of the Classification Lists with retrospective effect on the ground that the Assistant Collector, Central Excise, could do so only prospectively and relied on the decision of the Government of India v. Navin Industries, Bhawnagar reported in 1981 (8) ELT 958 (GOI), relevant portion of which is as under : - "On the question of competence of the Assistant Collector to review his own decision contained in the Classification Lists, Government observe that the Department can revise the Classification Lists approved wrongly. This fact has also been confirmed by the decision of AP High Court [1979 (4) ELT J 402] in the case of Southern Industries Ltd. However, Government observe that the Assistant Collector can give effect only prospectively of his review order."
(3.) THE other plea - that the assessment being provisional on account of dispute on valuation in the Price Lists, the Assistant Collector could have revised the Classification Lists retrospectively was also not accepted by the Assistant Collector by placing reliance on Tribunal's decision in Castrol Ltd. v. Collector of Central Excise, Calcutta, reported in 1985 (20) ELT 102. An appeal against this order to the Collector of Central Excise (Appeals), Calcutta has also been dismissed by an order dated 31 -1 -1986. An appeal against the order of Collector (Appeals) is now before us for consideration on the following grounds : - . (a) Collector (Appeals) erred in holding that the appellant could not have any grievance on the earlier Classification of the goods under Item 15A as the same was done at the instance of the appellant who also realised duty from its customers accordingly; (b) Since the classification of the goods under Item 15A was done by the Central Excise authorities not at the instance of the appellant, such order could not and cannot operate as a legal bar on the appellant to subsequently claim classification of the goods under Item 68. (c) Collector (Appeals) has erred in holding that the appellants' contention that since the price lists of the subject goods were provisional, the classification of the same might be accepted as provisional and, as such, revised classification could be given effect to retrospectively, were not corroborated by any law of Central Excise. (d) Collector (Appeals) should have appreciated and held that as the said goods are classifiable under Item 68 and all assessments on the monthly RT 12 returns of the appellants during the period April 1979 onwards are provisional. (e) Collector (Appeals) has not appreciated properly and correctly the ratio of the order in revision No. 192 of 1981 dated 30.3.81 passed by the Government of India in the case of Navin Industries [1981 (8) ELT 958] or the judgment of Andhra Pradesh High Court in the case of Southern Steel Ltd. v. Union of India [1979 (4) ELT J 402] or the decision of the Tribunal in the case oi Castrol Ltd. v. Collector of Central Excise, Calcutta [1985 (20) ELT 102] and had wrongly relied on those judgments or orders in coming to his aforesaid decision (f) Collector (Appeals) erred in holding that the decision of the Tribunal in the case of Sunrise Electrical Corporation, Bombay v. Collector of Customs, Bombay [1983 (14) ELT 2464] was irrelevant in the instant case. (g) Collector (Appeals) should have appreciated that and held that the same goods cannot be classified differently for different periods and should be classified under Item 68 with effect from 22 -3 -1977. ;

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