SHANTI METAL WORKS Vs. COLLECTOR OF C. EX.

JUDGEMENT

(1.) BRIEFLY stated facts of the case are : -

(2.) LEARNED Advocate, Shri A.R. Madhav Rao has submitted that the finding of the adjudicating authority does not rebut the factual plea of the appellants that the castings of aluminium and zinc which are disputed before us were either unmachined or machined only up to the stage of proof machining. He, therefore, submits that the judgment of this Tribunal in the case of Shivaji Works and Anr. v. Collector of Central Excise reported in 1994 (69) E.L.T. 674 squarely applies to the facts and circumstances of this case. The said judgment related to similar castings of iron and steel. He has also submitted that the said judgment has also been applied to the case of Pee Cee Casting (P) Limited v. Collector Central Excise, New Delhi dealt with by the Tribunal vide its Final Order Nos. E/297 -298/93 -BI, dated 23 -9 -93 holding the classification under Tariff Heading 7616.90 in respect of aluminium castings. He has also drawn attention to the judgment in the case of Dhanman Precicast Private Limited v. C.C.E., Aurangabad [1998 (103) E.L.T. 269 (Tribunal)] wherein it is reported that the Tribunal judgment in the case of Shivaji Works has been accepted by the CBEC vide its Circular No. 225/59/96 -CX, dated 1 -7 -1996 reported at 1996 (85) E.L.T. Page T -43. Learned Advocate, therefore, submits that the appeals be allowed with consequential relief to the appellants.

(3.) OPPOSING the contentions, learned SDR Shri R.D. Negi submits that the lower authorities have not actually given a finding whether the castings are unmachined or they are machined up to the stage of proof machining. In the absence of such finding, submits learned SDR, benefit to the appellants by placing reliance on Shivaji Works judgment, mentioned above, could not be extended. Learned SDR submits that in the absence of any such finding the appeals deserve to be remanded for giving a finding of fact on the factual plea taken by the appellants.