- (1.) The government of India by their order in revision dated 24/11/1978 concluded that copper rods and bars manufactured by the appellant could properly be classified under Item 26-A of the central Excise Tariff and not under Item 68 thereof. It, therefore, set aside the classification under the latter entry. The appellant thereafter classified their product under Item 26-A and in view of the exemption available to them they did not pay the duty on the said goods. In fact, they claimed refund of the duty which they had paidon the classification of the goods under Item 68. The Assistant Collector of central Excise, Jodhpur, however, held that hollow rods manufactured by the appellant were not covered under Tariff Item 26-A and would be liable to excise duty under Tariff Item 68. The appeal preferred by the appellant was rejected by the Appellate Collector. They, therefore, approached the customs, Excise and Gold (Control) Appellate tribunal (for short "the tribunal") questioning the correctness of the decision of the Assistant collector upheld in appeal by the Appellate Collector. The tribunal also affirmed the view taken by the authorities below that hollow rods manufactured by the appellant would properly fall under Item 68 of the excise Tariff. Aggrieved by the said decision, the appellant has preferred appeal No. 1322 of 1988 arising from the refund claim.
(2.) It may next be mentioned that on 16/1/1965 the Deputy superintendent of central Excise, Jodhpur, advised the appellant to take out a central Excise Licence as the manufactured product, namely, hollow bars/ rods fell within Tariff Item 26-A. However, on 29/4/1976 after Item 68 came to be introduced in the Tariff, it was informed that the product now fell within Tariff Item 68 and not under Tariff Item 26-A. On receipt of this communication, the appellant requested the Assistant Collector to treat hollow rods under Tariff Item 68 and submitted a fresh classification list. In the meantime, the High court of Gujarat took the view that hollow rods fell within Tariff Item 26-A (1. The appellant on learning about the said decision of the High court approached the Assistant Collector for reclassification of hollow rods under Item 26-A (1 of the Excise Tariff but this request was turned down. The government of India pointed out by their letter dated 24/11/1978 that the goods fell within Tariff Item 26-A. It was pursuant to this order that the appellant submitted a revised classification list classifying hollow rods under Tariff Item 26-A (1 and sought refund of the duty paid on the erroneous classification of the goods under Tariff Item 68. We have already pointed out earlier that the Assistant Collector as well as the appellate Collector and the tribunal concluded that hollow rods would properly fall within the newly inserted Tariff Item 68 and not Item 26-A (1 of the Excise Tariff. The appellant, therefore, has questioned that decision in ca No. 4084 of 1986.
(3.) Ca No. 4084 of 1986 relates to the period from December 1978 to april 1979 whereas CA No. 1322 of 1988 relates to the period prior thereto, i. e. , May 1976 to 24/11/1978. Since the question at issue in both these appeals is the same, we proceed to dispose of them by this common order.;