D.C. Mandal, Technical Member

1. Since these two appeals relate to a common question of classification, the same were heard together and are being disposed of by this common order.

2. In appeal No. E/1670/88-C filed by the Revenue the facts, in brief, are that the respondents M/s. Fenner (India) Ltd. are manufacturers of "PVC impregnated flame resistant colliery conveyer belting" and "PVC impregnated cotton conveyor belting (food quality). The above products were classified under Tariff sub-heading 3922.90 under the Central Excise Tariff Act, 1985 vide classification list No. 153/3/85-86 dated 7-3-86, effective from 1-3-86 and the same was approved. Later on, it was felt by the Department that the products were correctly classifiable under Tariff sub-heading No. 3920.11 or 3920.12, as the case may be, depending upon whether the products are rigid or flexible, since the products manufactured are in running length and not cut to size. A show cause notice was issued to the respondents on 12-6-87 requiring them to show cause to the Assistant Collector of Central Excise, Madurai as to why the aforesaid products should not be classified under Tariff sub-heading 3920.11 or 3920.12, as the case may be, read with Notification No. 132/86-C.E., dated 1-3-86. as amended, attracting Central Excise duty @ 35% ad valorem and why differential duty amounting to Rs. 99,47,235.00 should not be demanded in respect of clearances of the the goods during the period from 1-12-86 to 31-5-87 under Section 11-A of the Central Excises & Salt Act, 1944. In reply to the show cause notice, the respondents herein pleaded that Tariff Heading 39.20 did not apply to these goods and the same would attract duty under Tariff sub-heading 3922.90 from 1-3-86 to 9-2-87 and under sub-heading 3926.90 w.e.f. 10-2-87 @ 15% ad valorem. They also pleaded that the approved classification could not be changed retrospectively prior to issue of the show cause notice on 12-6-87. Another show cause notice was is sued by the Department to the respondents on 27-11-87 on the same issue demanding differential duty of Rs. 87,555.50 on the clearances of the goods in question for the period from 1-6-87 to 14-6-87 under Section 11-A of the Central Excises & Salt Act, 1944. The Assistant Collector of Central Excise confirmed the classification of the above two products under Tariff sub-heading 3920.11/3920.12 of the Central Excise Tariff Act, 1985, as the case may be, depending upon the rigidity or flexibility of the conveyor beltings, read with Notification No.l32/86-C.E., dated 1-3-86 as amended, attracting duty at the rate of 35% ad valorem. He also demanded the differential duty amounting to Rs. 1,00,34,790.50 on the goods cleared during the period from 1-12-86 to 14-6-87 under Section 11-A of the Act ibid. The order of the Assistant Collector was challenged by the respondents by filing appeal before the Collector of Customs & Central Excise, Madras, who has set aside the order of the Assistant Collector and has allowed the appeal by the impugned order. While setting aside the Assistant Collector's order, the Collector (Appeals) has observed as follows :-

I find that on page 575 of the Harmonised Commodity Description and Coding System, Tariff Heading 39.26 covers other articles of plastics and articles of other materials of heading Nos. 39.01 to 39.14. This heading covers articles not elsewhere specified or included of plastics or of other materials of heading Nos. 39.01 to 39.14 and they include transmission, conveyor or elevator belts, endless and cut to length or joined and to end or fitted with fasteners. Therefore, trans mission, conveyer and elevator belts even if they are endless and made out of plastic materials covered under headings 39.01 to 39.14 are to be classified under Tariff Heading No. 39.26. Accordingly, the Assistant Collector's contention that belts which are not cut to size are not classifiable under this Tariff Heading, is not correct.

By the present appeal, R