H.R. Syiem, Member (T)

1. Before the appeals were taken up, the Bench heard the application for condonation of delay in filing appeal No. 1546/86-B1. Considering that this was only a supplementary appeal that arose from the fact that the Appellate Collector passed one order in respect of two orders in original, the Bench condoned the delay and commenced the hearing of the two appeals.

2. The appellants were correct when they said in their revision petition dated 12.10.1981 that the Appellate Collector entered into the aspect of classification which was not a dispute before him for determination. The only dispute was whether end-use certificates were necessary for the purpose of notification No. 99/71-CE.

3. By his order in appeal No. 524/BD-21/81 and 525/BD-22/81 dated 25th April, 1981 the Appellate Collector of Central Excise (Appeals) rejected preferential assessment under notification No. 99/71-CE, because he said the springs were not classifiable under tariff item 34A. It was only those springs classifiable under tariff item 34A used as parts and accessories of motor vehicles which would be exempted from payment of duty under the notification.

4. The manufacturers, M/s. Sarang Spring Manufacturing Company manufactured springs some of which were excisable under item 68 and some others under item 34A of the Central Excise Tariff. The dispute arose because the manufactures asked for refund of duty which they had paid on goods assessed under tariff item 68 in the past but which they say should be assessed under item 34A, after a classification was approved by the Superintendent in May, 1978.

5. The Assistant Collector rejected the refund claim because he held that there were no end-use certificates for the springs, and that some springs supplied to a buyer were used in making parts of motor parts; or that the products supplied to the customers were not used in the factory but were consigned to other people for which end-use was not known, and that the description in the gate passes did not tally with the certificate. In another proceeding, the Superintendent rejected the claim to exemption on almost the same grounds as to the ones the Assistant Collector gave for rejecting the refund application.

6. In their attack on the Appellate Collector's order, the appellants say that the fact of their not classifying their goods as motor vehicle parts did not prohibit them from correcting an error. They were unable to understand the lower authorities' contention that the springs were used in the manufacture of parts and accessories of motor vehicles and not directly used in vehicles. And notification No. 99/71-CE did not prescribe production of end-use certificate. Therefore, the department had no legal authority to demand such certificates and to deny their lawful claim. If the department wanted to conduct enquiries into the end-use, they were free to do so, but they could not compel the assessees to submit to something not prescribed by law. The lower authorities said that the springs were used not in motor parts but in making parts of motor car parts.

7. The learned counsel Mr. Vora for the appellants argued on the above lines.

8. He also repeated that a part of their refund claim was sanctioned only because the customers were motor vehicles manufacturers. It was wrong for the department to demand end-use certificate when the notification did not require it. Their springs were not interchangeable and were made to specifications for use only as motor vehicle springs. They can be used nowhere else and they will serve no other purpose. He complained that even for goods which moved to original manufacturers refund was rejected on the ground that full particulars had not been given. Their claim was rejected without any notice.

9. On the question of interchangeability, he quoted MANU/KA/0099/1986 : 1986 (24) ELT 226 re: Ideal Jawa. The High Court held that bolts and nuts made to specifications for motor vehicles were motor vehicle parts.

10. Th