GUJARAT MACHINERY MANUFACTURES Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE captioned appeal was initially filed as a Revision Application before the Central Government which, on the constitution of this Tribunal has come to it on transfer under the provisions' of Section 35 -P(2) of the Central Excises and Salt Act (hereinafter referred to as the Act) to be disposed of by this Tribunal as if it were an appeal before it.

(2.) THE facts of the case are that the Appellants are engaged in the manufacture of a commodity called 'FRIT' and held for the purpose a Central Excise Licence in Form L -4 since 1975. The Appellants filed Classification List No. 2/80 on 5 -5 -1980 before the proper Officer of Excise, classifying the goods under Item No. 68 of the First Schedule to the Act (CET, for short). The main raw materials used in the manufacture of 'FRIT' are quartz, borax, potassium nitrate, soda, zirconia, alumina, titanium dioxide, lithium carbonate, and cobalt oxide etc. The manufacturing process, briefly stated, is that the mixture of the above raw materials is well ground and then heated, in a rotary furnace for about 3 to 5 hours at a temperature of 1000 to 1200cl After it is melted, the material is dropped in a tub containing water for quench ing. Small bits of blue shaped pieces are formed which arc termed as' FRIT' -The FRIT is used for glass lining of low carbon steel surface of reaction vessels -The Assistant Collector of Central Excise, Anand, by his order dated 9 -1 -1981, classified the product 'FRIT' (enamel) under Item No. 68 CET. On examination of the records of the case by the Collector of Central Excise, Baroda, for the purpose of satisfying himself as to the correctness, legality or propriety of the said order, the Collector felt that having regard to the amendments made to Tariff Item No. 23A CET by the Budget of 1979 (which took effect from 1 -3 -1979) and having regard to certain technical authorities relied upon by him, the product 'FRIT' correctly fell for classification under Item 23A(4) CET with effect from 1 -3 -1979. He, therefore, issued a notice dated 4 -11 -1981 to the Appellants asking them to show cause why he should not review the orders passed by the Assistant Collector under Section 35A(2) of the Act as i stood then and set aside the said orders. After considering the submissions made in writing and those advanced in the. course of personal hearing, the Collector, by his order dated 30 -4 -1982, set aside the Assistant Collector's orders dated 9 -1 -1981 classifying the product 'FRIT' under Item No. 68 CET, ordered the re -classification of the product under Item No. 23A(4) CET' and directed the Appellants, to pay excise duty at the rate applicable to the said Item No. 23A(4) or the difference in duty, as the case may be. Being aggrieved with the said orders of the Collector, the Appellants filed a Revision Application (hereinafter called the Appeal) before the Central Government which, as stated earlier, has come as transferred proceedings to this Tribunal.

(3.) THE appeal was heard on 27 -5 -1983, when Shri N.D. Khosla, Consultant, appeared on behalf of the Appellants and Shri K.V. Kunhikrishnan, JDR, appeared on behalf of Revenue. At the out -set, Shri Khosla, framed the following two issues for determination by this Tribunal: (i) What is the correct classification of the product 'FRIT (enamel)' manufactured by the Appellants - -Item No. 68 CET as decided by the Asstt. Collector or Item No. 23A(4) as decided by the Collector ?