S. Duggal, Member (J)

1. This Review Notice now being treated as an appeal, was issued by the Central Government on 8th October, 1982, invoking provisions of Section 36(2) of the Central Excises and Salt Act, 1944 as it then existed, calling upon the respondent herein to show cause as to why the order passed by the Central Board of Excise Customs (hereinafter referred to as the Board) dated 16-4-1982 allowing their appeal against the order of the Collector of Central Excise, Meerut, be not set aside.

2. The facts giving rise to these proceedings are to the effect that the respondent, a partnership firm under the name and style : M/s Trutuf Safety Glass Industries, Noida, Ghaziabad, manufactures wind screens, side screens, vents and back screens of toughened safety glass, and have been treating the same, during the relevant period (1-4-1979 to 4-3-1980), as falling under Tariff Item 68, but effected clearances without payment of Central Excise duty considering the goods as exempt from excise duty, by virtue of Notification No. 77/79 C.E . as amended from time to time and also thought them to be not subject to licensing control and other formalities by virtue of Notification No. 111/78. They accordingly never applied for any excise licence, nor submitted classification and price lists.

3. On the matter coming to notice of the concerned excise authorities, the respondents were served with a show cause notice, by invoking provisions of rules 9 and 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the Rules), and duty amount of Rs. 97,790.70 was demanded on the view that the goods manufactured and cleared by them fell under T.I. 23A(4) of the Central Excise Tariff (hereinafter referred to as the CET). This demand was confirmed by Order passed by the Collector of Central Excise, Meerut dated the August 1981 (actual date not indicated) holding that the goods manufactured by the respondent before him as items of glass, fell within the category of goods, as contemplated by sub-item (4) of Tariff Entry 23A of the CET, further holding that it was a case of suppression and clandestine removal of goods without payment of requisite excise duty, and without observing prescribed excise formalities. A personal penalty of Rs. 10,000 was thus imposed, in addition.

4. On this order being assailed, by means of an appeal before the Board, the same was set aside on the view that the products in dispute were, "wind screens or a sheet of glass made from glass, which is processed in a 'product-oriented fashion', by toughening it by carrying out certain functions on it meant for use when it reached the stage of the end product". It was further observed by the Board in the impugned order that these goods were specifically designed to have specifications as prescribed by a competent technical authority; namely, the Indian Standards Institution (ISI for short) and that such a product could only be used as a part or ancillary of an automobile in view of its specific shape, design and quality. Party's appeal was accordingly accepted holding that such type of toughened wind-screen glass could not be brought within the ambit of Entry 23A(4) of the CET, and not being specified anywhere else, was classifiable under T.I. 68. They were also held entitled to the benefit of relevant notifications and thus exempt from payment of excise duty as well as other licencing control and formalities such as obtaining of licences and submission of classification and price lists as well as maintenance of accounts. As a result, the appeal on the point of classification was allowed and demand of duty set aside but holding that it was not open to the party on its own to decide the question of classification and determine their entitlement to exemption from duty; the proper course in the Board's view being to have applied for Central Excise licence, and obtain decision of the concerned authorities, on such matters as relating to availability of Notification No,