Santosh Hegde, J. -
(1.)The appellants herein are the manufacturers of forged steel products which was assessable to central excise duty under Tariff Item 26-AA(ia). On the introduction of Tariff Item 68 in the first Schedule to the Central Excises and Salt Act, 1944 (the Act) w.e.f. 1-3-1985, a question arose whether the said product manufactured by the appellants by forging became liable for further duty under Tariff Item 68 because after the forging, the appellants are said to have subjected this product to certain other manufacturing processes like polishing and trimming to make the product suitable for its ultimate use. This dispute between the appellant and the Revenue had a chequered career going through the process of appeals, revision, writ petition before the Delhi High Court, then a remand, another round of appeal before the authorities and then ultimately another appeal to the Central Excise and Gold (Control) Appellate Tribunal (the tribunal) which was by then constituted, and from there to this Court by way of this statutory appeal. Thus, this litigation which started by virtue of an order made by the Assistant Collector on 21-1-1976 is now before us in the year 2002.
(2.)Before the tribunal, two questions arose for consideration. They are : whether the products manufactured by the appellants are classifiable under Tariff Item 68 If so, the demand made by the revenue for collection of duty under that head was within the period of limitation. A Bench of the tribunal which heard the appeal, could not come to a unanimous decision on these questions. The Judicial member came to the conclusion that the Department was right in classifying the goods under Tariff Item 68 while the Technical Member was of the opinion that the matter should be remanded to the lower appellate authority for deciding the classification of the products after taking into account the entire material brought on record by the appellants before the appellate authority and not by merely relying on the judgment of Delhi High Court.
(3.)In regard to the question of limitation, the Judicial Member held that even though the order of the Assistant Collector dated 22-1-1976 was not provisional but final, even then certain letters and orders issued or made during the course of the proceedings could be treated as required show cause notice, hence, the Department could determine the amount of duty payable by the party at last from 25-1-1985 till the end of 1985 hence partly allowed the claim of the revenue, while the Technical Member came to the conclusion that the clearances made by the appellants for the relevant period should be treated as provisional clearance which does not require issuance of show cause notice and also because of the interim order made by the High Court of Delhi on 19-2-1981, the Department was restrained from issuing the required show cause notice, therefore, the bar of limitation cannot be put against the revenue. On that basis the contention of the appellants of lack of show cause notice and bar of limitation came to be rejected. Thus, upholding the demand made by the revenue in its entirety.