K.L. Rekhi, Member (T)

1. As a common issue is involved in all the 8 appeals listed above, they were heard together and are being disposed of through this combined order.

2. The appeals listed at Sl. Nos. 2, 4 and 7 above are supplementary appeals. The Department at first filed only one consolidated appeal as the Order-in-Appeal passed in these cases was also a combined one. On being pointed out that a separate appeal would have to be filed for each of the Order-in-Original involved, the Department later filed the supplementary appeals and simultaneously prayed for condonation of the delay. During the hearing before us, both the respondents stated that in the circumstances of the case they had no objection to the delay being condoned. We condoned the delay in filing the supplementary appeals. Consideration of the appeals on merits was then taken up.

3. The appeals involve two main questions for our consideration. The substantive issue is whether broken glass, known in the local language as 'Bhagar' or as 'Bhatti-Se-Nikala-Hua Broken', is liable to central excise duty and, if so, under which item of the Tariff. The connected issue is whether, in case this material is held liable to duty, the demands for recovery of the past duty are partially hit by time bar or not. The Appellate Collector decided the substantive issue in favour of the respondents. He relied on the Bombay High Court judgment in the case of Indian Aluminium Company v. A.K. Bandyopadhyay (1980 E.L.T. 146 Bom.) in which the said High Court had held that dross and skimmings of aluminium were refuse, scum and rubbish and were not goods. The Appellate Collector held that broken glass was also a waste material, hence not goods and not excisable. The Department is in appeal before us against this order of the Appellate Collector,

4. During the hearing before us, the Department's Representative relied on the Tribunal's order in the case of Super Tyres (Pvt.) Ltd. v. Collector of Central Excise, Delhi reported at 1984 (3) E.T.R. 305 as well as on the other case law cited in the said order, including earlier orders of the Tribunal relating to bagasse, lump glass and saw dust. He sought to distinguish the case of broken glass from that of aluminium dross and skimmings saying that broken glass was a material of high value, it was known as glass, was regularly bought and sold and used for making glass bottles and other articles of inferior quality. He stated that though the material was in the form of broken pieces, yet it was glass and the respondents as well as their customers described it so. It was different from the raw materials-silica sand, soda ash and other chemicals - from which it was made and hence it ought to be considered as a manufactured item which also satisfied the definition of 'goods' as laid down by the Supreme Court in D.C.M. and South Bihar Sugar Mills cases cited in the Tribunal's order in the case of M/s. Super Tyres aforesaid. Regarding the Tariff Item applicable, he stated that item 23-A(4), after its amendment on 1-3 1979, was specific for other glass and glassware and since the material was glass, it ought to be covered by this specific entry with effect from 1-3-1979. Before that date, the residuary Item No. 68 of the Tariff would apply.

5. The first-mentioned respondents, M/s. Hindustan Scientific Glass Fancy Glassware Works, stated in reply that broken glass arose in their factory in the course of manufacture of glassware, as such it was process scrap and not a manufactured article and hence not excisable. The second respondents, M/s. Emkay Glass Works, stated that their plea in Appeal No. 685/83-D listed at Sl. No. 8 was that the material was not of their own manufacture but that the respondents had purchased it from others and hence it was trade goods for which no duty liability attached to the appellants. They stated that the Asstt. Collector had rejected this plea taken by them. The Appellate Collector, however, did not go into their ple