G. Sankaran, Member (T)

1. The captioned appeal was initially filed as a Revision Application before the Central Government which, under Section 35-P of the Central Excises and Salt Act, 1944, has come as transferred proceedings to this Tribunal, for disposal as if it were an appeal filed before it.

2. The facts of the case, briefly stated, are that M/s. Bhor Industries, Bombay (hereinafter referred to as Bhor for brevity's sake) filed a classification list No. XIV/75, dated 20-11-1975 for the product PVC films for lamination with jute and PVC films for tapes claiming that the PVC film was non-excisable on the ground it was a non-marketable intermediate product for internal use. This description was further amended to crude PVC films/sheets. The classification list was approved on 9-12-1975 by the Assistant Collector, Central Excise. Later on, on 15-2-1977, the Assistant Collector issued a show cause notice to Bhor calling upon them to show cause why the aforesaid films should not be reclassified as excisable under Item No. 15A(2) of the Central Excise Tariff Schedule and why duty should not be recovered from them thereafter as well as in respect of past clearances. The notice invoked Central Excise Rule 10 read with Rule 173-J. A corrigendum to the notice was issued on 23-2-77 substituting Rule 10-A in the place of Rule 10. Bhor contested the notice by saying that the product was not finished PVC film as known to the market, and the classification approval given on 9-12-1975 could not be revised when even the Central Board of Excise Customs could not do so because the notice was beyond the period of one year laid down in Section 3 5-A of the Central Excises and Salt Act. Bhor also challenged the legality of the proceedings in pursuance of the notices issued under Rule 10/10A even after the deletion of these Rules on 6-8-1977. They also cited a decision dated 14-1-1974 of the then Appellate Collector holding the very product as crude films/sheets as not marketable and falling outside Item 15A(2), CET. This decision could not be upset except under proper review proceedings under Section 36 of the Act. The Asstt. Collector did not accept these contentions but held that the product PVC films/sheets used for internal consumption for the manufacture of adhesive tapes, insulating tapes and jute laminates was classifiable under Item No. 15A(2), CET. He also directed Bhor to pay duty at the appropriate rate on past clearances under Rule 10A read with Rule 173-J. The appeal against this order did not meet with success. It is this order that is now under challenge before us.

3. The Sr. D.R. prayed for permission to produce a sample of the goods in dispute. However, in response to a query from the Bench, he said that the sample was not of the relevant period but of the present period. Shri Patel, for the appellants, objected to the production of the sample. We uphold the objection.

4. The points put forth by the learned Counsel for Bhor may be summarised as follows :-

(i) The classification of the very product had come up in the Asstt. Collector's adjudication order of 18-11-1972 by which it was held that flexible PVC sheets (unsupported), utilised by Bhor during the period 1-3-1970 to 29-5-1971 for the manufacture of textile fabrics, coated with plastic materials ("leather cloth"), in their factory were excisable.

In appeal, this order was set aside by the Appellate Collector who, by his order dated 14-1-74, held that the "Crude PVC sheets" manufactured by Bhor and used by them in the manufacture of leather cloth in their factory were not marketable as PVC sheets and so were not liable to duty under Item No. 15A(2), CET.

(ii) On 9-12-1975, the classification list for the product was approved - as crude films/sheets, non-excisable. On 27-7-1976, the Department raked up the question afresh and on 15-2-1977, a show cause notice was issued under Rule 10 read with Rule 173-J. By a corrigendum of 23-2-1977, Rule 10A was invoked in the place o