JUDGMENT

SABYASACHI MUKHARJI, J. :— This is an appeal under S. 35L of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) from the order of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT). The respondent M/s. Jayant Oil Mills Pvt. Ltd, Hyderabad, manufactures hydrogenated rice bran oil which was sold to industrial consumers. The said hydrogenated rice bran oil is used as raw material in the manufacture of soap. The respondents, M/s. Jayant Oil Miils Pvt. Ltd. filed a classification list dated 20th May, 1981 in respect of the said goods classifying the same under Tariff Item 12 for approval and claimed exemption under notification No. 9/60 dated 20th February, 1960. The Assistant Collector of Central Excise, Hyderabad III Division by an order dated 16th June, 1981 held that the hydrogenated rice bran oil was classifiable under Tariff Item 68 of the Central Excise Tariff (hereinafter referred to as CET), because hydrogenated rice bran oil is solid at the ordinary temperature and therefore should be considered as fat and not as oil. The Assistant Collector observed that there was one opinion that the said goods could not fall under Tariff Item 12 as it was unfit for human consumption. The Assistant Collector observed that the said goods was new product after manufacture, having a distinct name, character and use and as such it fell under Tariff Item 68-CET. The respondent on the other hand maintained before the Assistant Collector that the said goods was semi-solid and still vegetable non-essential oil falling under Tariff Item 12-CET.

2. Being dissatisfied with the order dated 16th June, 1981, the respondent appealed before the Appellate Collector of, Central Excise, Madras. By an order dated 30th November, 1981, the Appellate Collector held that hydrogenated rice bran oil is classifiable under Tariff Item 12-CET and therefore ordered for consequential relief to the respondent.

3. The order of the Appellate Collector holding that the said products are classifiable under Item 12-CET had not been reviewed by the Central Government under S. 36(2) of the Act. The Appellate Collector was therefore of the view that even after the superhardening or hydrogenation vegetable oil did not cease to be oil even it became solid.

4. The Central Government, Ministry of Finance Department of Revenue, being of the view that the order of the Appellate Collector was not proper, legal and correct, issued a show cause notice dated 12th May, 1982 to the respondent. The Central Government informed the respondents in the show cause notice that it appeared to the Government that the hdyrogenation of rice bran oil is a process of manufacture which brings into existence a new product known as hydrogenated rice bran oil in commercial parlance having a distract name, character and use and this end product would have been classified under Item 13 had it been fit for human consumption. It was further observed in the said show cause notice by the Government that as the melting point of the hydrogenated rice bran oil is more than 450 C it was of the nature of extra-hardened, vegetable product which was unfit for human consumption and since it was distinct from vegetable non-essential oil it would prime facie be classifiable under the residuary Item 68-CET.

5. The respondents were therefore, called upon to show cause is to why the order of the Appellate Collector should not be set aside and that of the Assistant Collector restored.

6. The matter came up before the CEGAT. The CEGAT noted in its impugned order that the appeal was concluded by the judgment of the five member Bench of the Tribunal in the case of M/s. Tata Oil Mills Co. Ltd., (1986) 24 ELT 290 and held that the order dated 30th November, 1981 of the Appellate Collector was correct and dismissed the appeal of the appellant.

7. It is necessary, therefore, to refer to the order of the CEGAT. The CEGAT noted that vide order dated 16th June, 198