K. Prakash Anand, Member (T)

1. These are a bunch of appeals, in some of which M/s. Dunlop India are the appellants and in others, they are the respondents, since in those cases the appeals have been filed by the department. The issue being the same, all these appeals are being disposed of by this common order.

2. The facts are that M/s. Dunlop India Ltd. declared to the Excise Authorities that they were manufacturing various types of scraps. However it was claimed by them that, in fact, they were not undertaking "manufacture" of scraps as such, since these products were in the nature of waste products and they were not 'goods' within the meaning of Central Excise Act.

3. As an alternative argument, it was claimed by them that even if the products in question were to be considered as excisable goods, then they were covered by exemption under Notification No. 179/77 dated 18.6.1977 because they were produced without the aid of power.

4. The view taken by Revenue is that the products in question are produced in the course of manufacture of other excisable goods and therefore have to be considered as the result of such manufacture. The lower authorities held that such scraps had a distinct identity as well as a market. As regards correct classification, it was held that such scraps, in the absence of any other Tariff entry goods fall for classification under Tariff Item 68. It was also held that in actual fact, power was used in the production of scraps and therefore exemption under Notification No. 179/77 was also not admissible.

5. When the issue went up before the Collector (Appeals), Central Excise Calcutta, the appeals were decided in two separate orders, one passed by one Collector (Appeals), for the earlier period and the other passed by his successor for later period. The second order held that scraps arising in the course of some manufacturing process cannot be subjected to duty because they are not manufactured, as such, and cannot be treated as "goods'" for the purpose of levy and collection of Central Excise duty. It was held that even if the scraps fetched some price, these were not excisable because they were not products having a distinct name in the commercial parlance and scraps were nothing but a waste product.

6. In their 7 appeals, filed against this order of the learned Collector (Appeals), the department have submitted before us that scraps can be considered as "manufactured" since the term manufacture in Section 2(f) of Central Excises and Salt Act, 1944 includes any process incidental and ancillary to completion of manufacture product. It is pointed out that the scraps so obtained are distinct from the inputs used.

It is also submitted that in the case of Central Excise Tariff entries 25, 26A and 26B, scrap iron, copper waste and scraps and zinc waste and scraps are specifically recognised as excisable goods. It is added that the scraps can be considered as defective goods and that there is no doubt that they are marketable as they are regularly sold by the assessee.

Finally it is pointed out that there was an earlier order in appeal No. 183/WB/82 dated 30.8.1982 passed by the Appellate Collector of Customs Central Excise, Calcutta where the scraps in question were held to be classifiable under Item 68 of Central Excise Tariff, but this fact was suppressed by the assessee.

7. There is a separate appeal filed by the department (No. 2087/83-D) against the afore mentioned order-in-original No. 183/WB-82 dt. 30.8.1982 passed by the Appellate Collector. In this case the Appellate Collector had held that the scraps were being sold regularly and therefore they were commercially known and actually traded in. Therefore it was held that these scraps were goods. Furthermore it was held that since the scraps were totally distinct from the raw material which had gone into the production. Therefore, it had to be taken that there had been "manufacture".

Having held scraps to be excisable, the learned Appellate Collector how