CCE Vs. GREAVES LTD.

JUDGEMENT

(1.) THE respondents are manufacturers of machineries falling under Chapter 84 of the CETA Schedule. They removed certain spare parts of concrete pump (on payment of duty) to a customer, but the latter returned the goods for want of demand in market. Upon receipt of the returned goods, the respondents manufactured concrete pumps out of the spare parts and cleared the same (on payment of duty) to another customer. The return of these spare parts was in terms of Rule 173L of the Central Excise Rules, 1944. Having removed the concrete pump on payment of duty, the party filed a claim under Rule 173L for refund of the duty paid initially on the spare parts. This claim was rejected by the original authority on the ground that the returned spare parts had not been subjected to any of the processes specified under Rule 173L(1) viz. remarking, refining, reconditioning or other similar processes. This decision of the adjudicating authority was set aside by the first appellate authority relying on the Tribunal's decision in the cases of Asea Brown Boveri Ltd. v. Commissioner of Central Excise, Bangalore : 1999 (106) ELT 422 (T) and Taylor Instrument Co. (I) Ltd. v. Collector of Central Excise, New Delhi : 1995 (177) ELT 149 (T) = 1995 (57) ECR 311 (T). Hence the present appeal of the Revenue, wherein it is claimed that the facts of the cases of Asea Brown Boveries Ltd. and Taylor Instrument Co. (I) Ltd. are distinguishable from those of the instant case. Ld. DR has reiterated this ground. It has been pointed out that, in the present case, the product cleared subsequently by the respondents was different from the goods cleared earlier from their factory.

(2.) LD . Counsel for the respondents submits that the returned spare parts and the pump made out of them are to be treated as goods of the same class inasmuch as both are falling under the same Heading 84.13 of the CETA Schedule and, therefore, it cannot be said that a product different from the returned goods was removed by the respondents. Therefore, according to ld. Counsel, the goods is covered by Rule 173L. In this connection, reliance is placed on the Tribunal's decision in Commissioner of Central Excise v. Orissa Cement Ltd. : 1984 (17) ELT 161 (tri.) = 1984 ECR 1565 (cegat), wherein defective firebricks were considered to be of the same class as that of mortar obtained by grinding of the bricks, having regard to the fact that both the items were covered by the same Tariff Item (No. 68) of the old Central Excise Tariff.

(3.) LD . Commissioner (Appeals) has relied on two decision of this Tribunal for the purpose of setting aside the original authority's order. The appellant has correctly distinguished those cases from the case on hand vide paragraphs 5 and 6 of the grounds of appeal, which are reproduced below: