Judgment

V.N. Khare, J.-These two appeals are directed against the order dated 12-8-92 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the ‘tribunal’), whereby the tribunal allowed the respondent’s appeals holding that the tanks and vats manufactured by the assessee would be classified under sub-heading 3926.90 of the schedule to the Central Excise Tariff Act, 1985 as “other articles of plastics” and not under heading 39.25 and sub-heading 3925.10 as “builders ware” of plastics.

2. The facts of the case, briefly stated, are these :

The respondent herein is engaged in business of manufacture of ves­sels, chemical tanks, reaction vessels, pipes and gobar gas plants. On a surprise inspection of the respondent’s factory by the Central Preventive Unit of the Central Excise Department it was found that the respondent’s unit was engaged in manufacture and sale of reservoir tanks etc. without payment of excise duty. Earlier, the respondent claimed exemption from licensing control by declaring the goods manu­factured by them being goods covered by sub-heading 3926.90 of the Central Excise Tariff Act. The Excise authorities being of the opinion that there was suppression of material facts in the declaration given by the respondent with the purpose of evading duty, 22 tanks/reser­voirs manufactured by the respondent were seized. Consequently, a show-cause notice dated 16.1.1989 was served upon the respondent, whereby the assessee was directed to show cause why duty amounting to Rs. 4,97,883 towards the goods cleared by them be not demanded and recovered under rule 9(2) of the Rules read with proviso to Section 11(A) of the Act. In response to the said show cause notice, the respondent submitted its explanation wherein it was stated that the goods manufactured by them were exempt from payment of duty as the same fall under sub-heading 3926.90 as “other articles of plastics”. The Additional Collector of Central Excise, Bombay held that heading 39.25 covers not only plastic tanks used in the construction of build­ing, but also in the construction of industrial plants. The explana­tion of the respondent that the heading 39.25 should be given the restricted meaning and confined to the reservoir used in construction of building was rejected. On the question of application of extended period of limitation contained is proviso to Section 11(A) of the Act for the purpose of raising demand, the Additional Collector held that since the respondent had misled the department into believing that these were articles of plastics falling under sub-heading 3926.90 and that, they had deliberately suppressed the facts that the goods manu­factured by them are actually storage tanks, the demand raised by the department deserved to be confirmed.

3. Being aggrieved, the respondent preferred Appeal No. F/3153/88-D against the order confirming the demand raised by the Department and imposing penalty, besides confiscating 188 plastic reservoirs, inter alia, contending that the goods manufactured by them are classifiable under sub-heading 3926.90 as against sub-heading 3925.10 and that the demand of duty beyond the period of six months is barred by time. the respondent also preferred Appeal No. 3104/900 before the Tribunal against The order of the Collector (Appeals) setting aside the approv­al of the classification list by the Assistant Collector. Since both the appeals raised common question of facts and law, they were heard and decided together by the tribunal. The tribunal held that for the goods to be classified under sub-heading 3925.10 as “builders’ ware of plastics” not elsewhere as specified or included, it was necessary for the department to establish that the reservoir/tanks, vats and similar containers manufactured by the respondent were essentially “builders ware”. The tribunal further held that since no evidence was produced by the department to establish that the goods manufactured by the responde