A.J.F. D'Souza, Member (T)

1. This appeal was earlier heard on 19-10-1983 by a Special Bench. Since they could not agree with the ratio of the decision by another Special Bench in Order No. (1983 E.L.T. 1122), this Special Bench comprising five Members has been constituted by the President to decide the appeal.

2. The matter before the Bench originated in the Revision Application dated 27th August, 1975 transferred by the Government of India to the Tribunal to be heard as an appeal, pursuant to Section 131(B) (a) of Customs Act, 1962.

3. The issue that arises for our consideration is whether Malleable Iron Castings, imported by the appellants for further processing into motor parts fall within the purview of Item 25 : Iron in Any Crude Form including...or 26AA : Iron or Steel Products ... of the First Schedule to the Central Excises and Salt Act, 1944, in order that countervailing duty in terms of the rates prescribed in either of these items could be levied under Section 2A of the Indian Tariff Act, 1934. Six other appeals filed by the appellants in relation to consignments of similar goods decided by the common order-in-appeal of the Appellate Collector of Customs, Bombay are connected with this appeal and the ratio of our decision herein will apply to those appeals as well.

4. The subject consignment was described in Bill of Entry No dated 9th August, 1972 as-

"CKD Motor Vehicle Parts" castings

in semi-finished condition for the manufacture

of Motor Vehicles.

Cover, oil cooler

(Iron casting)

and was assessed under Item 63 (28) and also charged to countervailing duty at Rs. 73.13 per M.T. The appellants claimed re-assessment without levy of countervailing duty, on the ground that the goods imported are castings having carbon contents more than 1.8% and hence they are "malleable iron castings" and not "steel castings". The Assistant Collector of Customs, however, held that Item 26AA(v) of the Central Excise Schedule covers "all other steel castings N.O.S." and even though the castings imported may be having carbon contents more than 1.8%, these are known in the trade as "steel castings" and hence have been correctly charged C.V.D. He, therefore, held that no refund is due and rejected the claim as untenable by his order No. 2018/72-73R, dated 12-10-1972. The appeal against this order and the six orders in respect of other consignments were decided by the impugned common order-in-appeal dated 25-3-1975.

5. Accepting the contention that the castings in question were not steel castings and were not liable to duty under C.E.T. Item 26AA, the Appellate Collector, Bombay did not, however, accept the contention that castings of iron, which had undergone processes like annealing, normalising and heat treatment, would not fall under Item 25 because it comprehends "iron in any crude form" and by inference excludes iron which is not in crude form. Citing the description "IRON IN ANY CRUDE FORM, including pig iron, scrap iron, molten iron and (obviously a mistake for 'or') iron cast in any other shape or size"; and relying on a judgment of the Kerala High Court (ACR 1969 KER II P. 16) to interpret the word "including", the Appellate Collector held that it would be reasonable and tenable to hold that, "iron castings in any other shape or size", is not necessarily limited in its connotation to the genus "iron in any crude form" and could be iron, other than in crude form, cast in any other shape or size. The consequence of such construction would be that even processed iron casting in any shape or size would fall within the ambit of Item 25 and be liable to countervailing duty. He held accordingly and allowed the appeals to the extent that these castings are determined to be of processed iron, not liable to C.V.D. at the rate in Item 26AA, but the appellants should be granted consequential refund of the duty levied in excess of that which is appropriate under Item 25 C.E.T.

6. In this appeal it is contended that it is clear from the definitions o