- (1.) Appeal admitted.
(2.) After hearing both counsel the appeal is disposed of.
(3.) The controversy before us relates only to the additional duty payable under S. 3 of the Customs Tariff Act, 1975. The assessee appellant had claimed that no excise duty was payable in respect of the material imported by it on the ground that it was scrap. It appears that the goods have been classified under Item 73.16 (I) of the Customs Tariff Act and this has not been specifically challenged by the appellant. However the appellant's contention was accepted by the Collector of Customs who held that "since the material imported constituted used and second-hand scrap (even though they be rails) they cannot be deemed to be manufactured for levy of central excise duty". The Department preferred an appeal from the order of the Collector. By the time the tribunal came to decide the appeal it had the benefit of this court's judgment in the case of Khandelwal Metal and Engineering Works v. Union of India - 1985 (Supp. ) 1 SCR 750. In view of this decision, the tribunal came to the conclusion that even if the product represented scrap it was liable to excise duty. Faced with this situation the appellant sought to raise a point before the tribunal that in case it was scrap, it would fall under S. 68 of the central Excise Tariff Act and not under Item 26aa. It raised this argument because there is a difference in the duty leviable under the two items. The tribunal, however, refused permission to the assessee to raise this ground and, having come to the conclusion that the goods though scrap are dutiable under the central Excise Act, allowed the department's appeal.;