Harish Chander, Member (J)

1. The Collector of Central Excise, Bhubaneswar, has filed an appeal being aggrieved from Order No. 199/OR/83 dated 6th July, 1983 passed by the Collector (Appeals), Central Excise, Calcutta.

2. Briefly, the facts of the case are that Orissa Cement Ltd., Rajgangpur, manufacturer of Refractory Bricks had supplied 2800 Nos. of Magnesite bricks along with other bricks falling under Tariff item No. 68 to M/s. Tamilnadu Steels, Arkonam on S.E. Railway under G.P. No. 3176 dated 27th. Nov. 80 on payment of central excise duty @ 8% on the invoice value. M/s. Tamilnadu Steels had rejected 2662 Nos. bricks out of above said supply of bricks and had returned to the consignor, M/s. Orissa Cement Ltd., Rajgangpur which was received in the factory on 11th Feb. 81 as per intimation under D-3 No. 1 dated 11th Feb. 81. The respondent, M/s. Orissa Cement Ltd., Rajgangpur had made a refund claim for Rs. 6,930.52 towards payment of duty already made by the respondent on the return of the rejected bricks. A show cause notice No. V(68)/18/324/81/7191-92 dated 16th Nov. 81 was issued by the Supdt. (Technical), Central Excise Customs, Rourkela on behalf of the Asstt. Collector of Central Excise Customs, Rourkela Division desiring the respondent to show cause within thirty days from the date of receipt of the said notice as to why the refund claim should not be rejected. The respondent had filed a reply to the said show cause notice vide letter No. RGGO/Exc/RS/5 dated 20th Jun. 82. The learned Asstt. Collector had rejected the claim of the respondent for refund of Rs. 6,930.52 on the ground that the respondent's claim for refund is not in conformity with Rule 173-L of Central Excise Rules, 1944 as after receiving back the rejected bricks the respondent had re-processed and converted the rejected bricks into mortar and had sold the same to other parties after the payment of excise duty and had held that the respondent did not produce the same class of goods i.e., bricks. Being aggrieved from the aforesaid order the respondent had gone in appeal before the Collector (Appeals), Central Excise, Calcutta. The Collector (Appeals) had accepted the appeal of the respondent and had held that the mortar and defective bricks are the same class of goods. He had relied on a judgment of Government of India in the case of Britannia Biscuit Co. in Order-in-Revision No. 459 of 1980 dated 19-5-80 reported in 1980 E.L.T. 649. Being aggrieved from the order passed by the Collector (Appeals), the Revenue has come in appeal before this court.

3. Shri A.K. Saha, the learned Sr. D.R. has appeared on behalf of the appellant and has re-submitted the facts stated above. He has pleaded that there is no compliance to Rule 173-L ibid. He has pleaded that bricks and mortar fall under a different class and has pleaded for setting aside of the order passed by the Collector (Appeals) and has further pleaded that the Government of India decision in the case of Brittania Biscuit Co. reported in 1980 E.L.T. 649 is not applicable in this case. He has pleaded that the judgment relied upon by the learned Collector (Appeals) is not applicable in this case as in that case biscuits of different variety were returned and subsequently biscuits of different variety were prepared. But in the instant case, bricks were sold after payment of excise duty and were received back by the respondent being defective, but instead of re-manufacturing the bricks the respondent prepared mortar and had sold the same after payment of excise duty. He has cited examples of Exercise Books on composed manure which appear at Sl. Nos. 3 and 11 of the Schedule in Tariff Item 68 at page 777 of the Cen-Cus on Central Excise Tariff 1983-84. He has pleaded that all the items of Tariff Item 68 do not fall under the same class since bricks and mortar do not fall in the same class and as such the same is not in conformity with the provisions of Rule 173-L of the Central Excise Rules, 1944. He h