H.R. Syiem, Member (T)

1. By his order C.No. 2-CE/ APPEL/CHG/REV/83, dated 25-4-1986 the Collector of Central Excise (Appeals) New Delhi decided 37 appeals in respect of the assessment of steel products of thickness less than 3 mm and width of 75 mm or more. The period was prior to 1-8-1983. The Assistant Collector of Central Excise, Patiala approved 37 classifications filed by the manufacturers of iron and steel products and classified them as bars excisable under Item 26AA(ia). The Collector not being satisfied with the classification, caused appeals to be filed against these orders under Section 35E of the Central Excises and Salt Act before the Collector (Appeals), who decided that assessment should be under Item 26AA(iii); these appeals impugn that order of the Collector (Appeals).

2. Before the arguments started, the learned counsel for the department said that an order passed by the Collector (Appeals) in terms of Section 35E(4) on an application by the Collector of Central Excise is not appealable to the Tribunal, and that the right of appeal in a case like this has not been specifically given as in other cases; therefore this appeal is not maintainable. However in 1986(25) ELT 51 the Tribunal decided that such an appeal was in order.

3. The learned counsel for the manufacturers said that the Assistant Collector had approved the assessment as a bar since the measurement was below 3 mm in thickness and above 75 mm in width; their mill is a merchant/bar mill and cannot produce a strip; it can produce only bars. The strip needs operations for shearing and cutting the edges so that uniform rectangular cross-section is achieved throughout the length of the product. Their bar mill/merchant mill only has two horizontal rollers between which the product is rolled; it is not possible in these circumstances and in the condition of the factory to produce uniform rectangular cross-sections throughout the length of the product. A strip must be in coil form, where as their products are in straight lengths.

4. The counsel said that this Tribunal has given orders supporting the assessment made by the Assistant Collector and he suggested that the same order should be issued in these cases. He emphasised very strongly that the assessment in other factories and in other collectorates are not according to the Collector (Appeal)'s decision in their case, and if the Collector (Appeal)'s order is upheld it will result in serious disparity and discrimination against them. He noted that there have been several decisions by departmental officers like Assistant Collectors and Collector (Appeals) and these have never been appealed. He drew special attention to order-in-appeal C.No. 289/CE/APPL/KNP, dated 17-9-1983 in which the Collector of Central Excise (Appeals) New Delhi assessed such goods as bars. This order has not been appealed by the department.

5. The department did not have the goods examined by the chemical examiner of the department to determine its cross-section by scientific methods. The Collector (Appeals) says the fact that the mill is a bar mill is not relevant for assessment of these products; however the counsel emphasised that their products are not contoured.

6. At the hearing held before us the learned counsel for the department entered many arguments, the chief being his vehement denial of such goods ever being capable of passing as bars; he showed samples which he said he had obtained and said that the goods look more like strips or thin sheets of steel products. When one speaks of bars one understands the Section to be a fairly substantial thickness, strong enough to hold up against weight and pressure. The present sample would have no strength and has nothing to qualify it as bars. He pointed to the retaining or horizontal bars in the window of the court room and said that such are the things one understands as bars. The bars must be stout and strong enough to pass as bar; the goods manufactured by these assessees are kno