D.M. Vasavada, Member (J)

1. The issue involved in these four appeals is the same. What is the meaning of the word "re-made" used in Rule 173L of the C.E. Rules, 1944 (hereinafter referred to as Rules)? So, we have heard all these appeals together and dispose them of by this common order. It is not necessary to recite facts of these appeals because they are all admitted and there is no dispute about them and decision in all these appeals depend upon the decision of the issue stated above.

2. We have heard Shri C.L. Beri, Ld. Advocate for the appellants and Shri L.C. Chakravorty, Ld. J.D.R. for the respondent.

3. Shri Beri made following submissions :

The appellants are manufacturing sheet glasses and some consignments get damaged in transit for various reasons. These consignments are returned to the factory of the appellants and the broken pieces are re-melted and the sheet glasses are prepared out of the said broken pieces. The appellants do not use any other material like sand, silica, etc., which are the raw-materials for the manufacture of the final product. So, it should not be treated as 'manufacture' but should be treated as 're-make'. He, further, submitted that the rate of duty remains the same and what is returned is also sheet glasses and what is finally produced out of the said damaged sheet glasses is also sheet glasses. He cited :-

1. McNicol and Anr. v. Pinch - King's Bench Division - 352 (1906) .

2. Union of India and Ors. v. Delhi Cloth and General Mills Co. Ltd. and Ors. -1977 (1) E.L.T. (J 199) .

3. Union of India v. S.B. Sugar Mills - 1978 (2) E.L.T. (J 666) .

4. Union of India v. The Britannia Biscuit Co. Ltd. - 1980 (6) E.L.T. (J 649) (G.O.I.) .

5. Century Spinning and Manufacturing Co. Ltd. v. Union of India - MANU/MH/0189/1979 : 1981 (8) E.L.T. 676 (Bom.) .

6. Collector of Customs, Meerut v. J.G. Glass Ltd. -MANU/CE/0201/1988 : 1988 (37) E.L.T. 248 (Tri.) .

4. Shri Chakravorty, Ld. J.D.R. made following submissions :-

The process of the appellants is the same, viz., melting the raw-materials. It is not material whether as raw-material, sand, silica are used or broken glass pieces are used. Even in manufacture of paper, waste paper is used for preparing pulp and same is the case in the manufacture of plastics wherein also used broken and discarded plastic articles are melted and re-moulded. The damaged goods, which are returned, are 'bhagar' and not sheet glasses and they were classifiable under T.I. 68 upto 28-2-1979, while sheet glasses were classifiable under T.I. 23A(i) of the erstwhile First Schedule of the Central Excises and Salt Act, 1944. Under the new tariff also, the sheet glasses are classifiable under Heading/Sub-heading 70.02 while the broken glass pieces are classifiable under 70.01.

5. We have carefully perused the arguments advanced and citations produced by both sides. Arguments advanced are, altogether, of different track because it is not in dispute, as it appears from the record that process of re-making of the broken goods into finished goods is the same and so it is the process of manufacture. Of course, it has been contended by the Ld. D.R. that the goods which are returned to the factory are not the same and so provisions of Rule 173L are not satisfied. He has cited - Collector of Central Excise, Kanpur v. Hindustan Scientific Glass and Fancy Glassware Works and Anr. - MANU/CE/0055/1985 : 1985 (21) E.L.T. 195 (Tri.) . We have perused this citation, but it is not applicable to the facts of the present case. According to the submissions of the Ld. D.R., same goods have to be returned otherwise provisions of Rule 173L would not come into play. The relevant portion of the said Rule is reproduced as under :-

"Rule 173L. - Refund of duty on goods returned to factory. -

(1) The Collector may grant refund of the duty paid on manufactured excisable goods issued for home consumption from a factory, which are returned to the same or any other factory for being re-made, refined, reconditioned o