G.A. Brahma Deva, Member (J)

1. This appeal is filed by the revenue against the Order-in-Appeal No. M/753/AHD/368/86 dated 24-7-1986 passed by the Collector of Central Excise (Appeals), Bombay.

2. Facts of the case, in brief, are that the respondents M/s. Maize Products Limited have received duty paid rejected goods from their customers as under :

(a) 404 bags of 'White Dextrine' originally cleared on payment of duty under G.P.I. Nos. 1134 and 1135 dt. 8-8-1981.

(b) 12 bags of 'White Dextrine' originally cleared on payment of duty under G.P.I. Nos. 1184 and 1185 dt. 13-8-1981.

(c) 20 bags of 'Mapropharm Starch' cleared on payment of duty under G.P.I. No. 2957 dt. 19-3-1982.

They, therefore, filed D-3 No. 21 dt. 12-12-1981, No. 26 dated 11-1-1982 and No. 3 dated 28-5-1982 under Rule 173-H and accounted for in Form V register. The above goods were further reprocessed as a result of which 'White Dextrine' had turned into 'Yellow Dextrine' and 'Mapropharm Starch' was rebagged after serving into 'Maize Starch Powder'. The reprocessed goods were then cleared without payment of duty as provided in Rule 173-H under cover of G.P.I. No. 454 dated 29-5-1982, No. 576 dated 14-7-1982, No. 539 dated 8-6-1982 and No. 570 dated 12-6-1982. These facts were also reported by them in their R.T. 12 returns. According to the Department the reprocessed goods cleared without payment of duty were not the same goods which were received under D-3 in respect of duty paid rejected goods brought in the factory and on these grounds the duty on the reprocessed goods was demanded by issuing three Show Cause Notices. These Show Cause Notices were duly answered by the respondents contending that the goods cleared without payment of duty were the same goods which were received by them for reprocessing and that the processes applied on the rejected goods did not amount to manufacture of any new goods and also that the resultant reprocessed goods were covered by the same Tariff Item in which the rejected duty paid goods had discharged their duty liability at the time of their original clearance from the factory. It was also contended by them that Show Cause Notices were not sustainable as they did not disclose any reasons why the reprocessed goods were not considered as the same- duty paid rejected goods and extended period of 5 years under Section 11A was not applicable. These contentions were negatived by the Assistant Collector who confirmed the demand. In appeal, the Collector of Central Excise (Appeals), Bombay, following the ratio of the decision of the Tribunal in the case of Collector of Central Excise, Bhubaneswar v. Orissa Cement Co. Ltd. [MANU/CK/0004/1984 : 1984 (17) ELT 161 (Tribunal)], allowed the appeal accepting the contention that the reprocessed goods were for all purposes the same goods which were received back in their factory. Further he did not agree with the Assistant Collector that period of 5 years was applicable under Section 11A and accordingly, he set aside the order of the Assistant Collector. Aggrieved by this order, the Department has come before us by way of this appeal.

3. We have heard Shri L. Narasimha Murthy, learned JDR for the appellant and Shri N.I. Mehta, learned Advocate for the respondents.

4. It was contended by Shri Narasimha Murthy, learned JDR for the revenue, that reprocessed goods cleared without payment of duty are not the same goods which were received and new goods came into existence by process of manufacture and in view of the fact that new product emerged out of process of manufacture in different name, form and for different uses. It cannot be considered as the same goods under Rule 173-H of Central Excise Rules, 1944. He stated that the goods had been cleared in different name and this fact was not disclosed to the department which amounts to concealment of fact and extended period of 5 years under Section 11A was justified. Further, he said that ratio of the decision in the case of Orissa Cement Co. Ltd.,