Cast iron rolls are covered by Item 25 or 26AA of the Central Excise Tariff and not by Item 68.

1. Pursuant to the notice of motion issued in the morning, Mr. T. Somasundaram, learned counsel for the respondents appeared. By consent, the writ petition itself is taken up for final disposal and disposed of accordingly.

2. The grievance of the petitioner is that in the appeal pending before the first respondent against the orders of the second respondent, an application for stay was filed and in spite of reminders, the first respondent had not taken up the said application and passed orders thereon. The learned counsel for the petitioner also brought to my notice the trade notice dated 16.4.1985 issued by the Department of Central Excise which reads as follows :

"It has been represented that coercive action to realise arrears from the Assessee is being taken before the expiry of the statutory period for filing appeal. It is clarified that no steps to recover disputed dues will be taken till one month after expiry of the period of appeal, that is to say, upto four months from the date of the adjudication order".

3. Placing reliance on the above trade notice, the learned counsel for the petitioner contends that the petitioner is entitled to the order of stay pending disposal of his appeal by the Appellate Authority, namely, the first respondent. The learned counsel for the respondents submitted that the first respondent can be directed to dispose of the stay petition filed by the petitioner within three weeks from the date of receipt of a copy of this order and, in the meanwhile, stay of operation of the order of the second respondent can be granted. But the learned counsel for the petitioner wants a further direction to be given to the first respondent to dispose of the appeal itself within a specified time which is opposed by the learned counsel for the respondents.

4. After hearing the learned counsel on both sides, I consider that for the respondent the grievance of the petitioner can be redressed by directing the first respondent to dispose of the stay petition pending on his file. Accordingly the first respondent is directed to dispose of the stay petition filed by the petitioner and pending on his file within three weeks from the date of receipt of a copy of this order. Meanwhile, the order passed by the second respondent will be kept in abeyance. The writ petition is ordered accordingly. No costs.

27. Neither the Assistant Collector to his orders dated 11th July, 1978 and October 6, 1977 or the Government of India in the said show cause notice dated 10th September, 1981 nor the Assistant Collector of Central Excise who affirmed the affidavit in this proceeding mentioned about the processes undertaken by the petitioner by which the said Cast rolls are allegedly converted into identifiable machine parts. The bare allegation is that the said cast rolls were delivered from the factory of the petitioner in finished condition i.e. after machining, grinding and polishing by which the said cast rolls acquired identity as machine parts. As indicated earlier and as found as a fact by the Appellate Collector in the case referred to above that the said processes are undertaken simply to make the castings marketable. The Steel Plants have also corroborated the said fact. There is thus no material whatsoever on record nor any evidence has been adduced in support of the contention that any identifiable machine part is manufactured at the factory of the petitioner.

28. In issuing the impugned notice, the respondents proceeded on assumption of fact. The assumption is that by the said machining and polishing etc. a distinct shape and character is given to the said products. This assumption has no basis. The product acquires the shape as and when it comes out of the mould. The cast rolls when taken out of the mould emerge in the shape, size and form of the roll in which it was cast.

29. Item No. 25 of the First Schedule to the said Act covers, inter alia, iron cast in any shape or size. Similarly Item No. 26AA of the First Schedule to the