M. Santhanam, Member (J)

1. These are four appeals involving common questions of fact and law and hence they were taken up for hearing together.

A. No. ED(SB)/A. No. 1075/83-B, File No. 2856/82.

2. This appeal and the other appeals involve the interpretation of the term "Ocean-going vessels". By Notification 89/79 of Central Excise, dated 1-3-79, the Central Government exempted goods falling under Tariff Item No. 68 and cleared for home consumption on or after 1st April in any financial year by or on behalf of a manufacturer upto an aggregate value not exceeding Rs. 15,00,000/-. The assessee could avail the benefit of the exemption provided an officer, not below the rank of an Assistant Collector, was satisfied that the sum total of the value of the capital investment made from time to time on plant and machinery was not more than Rs. 10,00,000/-. By Notification 105/80, dated 19-6-80, Notification 89/79 was superseded and certain modifications were made in regard to the clearances and the eligibility was fixed for the period from 1st April in any financial year as not to exceed Rs. 30,00,000/-, and for the period 19-6-80 to 31-3-81 as not exceeding Rs. 24,00,000/-. Another Notification that has relevance is No. 55/75 dated 1-3-75, by which the Central Government exempted goods of the description falling under Tariff Item 68 from the whole of the duty excisable thereon. Notification 55 of 1975, which was amended by Notification 102/80, provided that "ocean-going vessels" falling under Tariff Item 68 were exempt from the whole of the duty of excise leviable thereon. Under Notification 104 of 1982, this Notification 55 of 1975 was superseded. Serial No. 33 in the Schedule of this, exempted "ocean-going vessels" from Excise Duty when cleared. The appellants submitted that the exemption granted by Notification No. 104/82 was irrespective of the exemption granted by Notifications 89/79 and 105/80. The appellants filed a declaration on 20-5-80 to the Assistant Collector intimating that they were entitled to avail the benefit of Notification 89/79. The appellants had invested on plant and machinery, a sum of Rs. 4,65,072.31.

3. The facts in this particular appeal are that the value of excisable goods cleared by them during the financial year 1979-80 was Rs. 15,29,670/-. The Assistant Collector having jurisdiction, intimated the appellants on 18-6-80 that they were permitted to avail the benefit of the notification. Subsequent to Notification 105 of 1980, on 10-10-1980 the appellants filed Classification List No. 78/80, mentioning therein that they have manufactured barges as well as ocean-going vessels. In respect of barges, although the appellants mentioned the rate of duty as 8% under Tariff Item No. 68, they claimed complete exemption for these barges under Notification No. 55/75 as amended by Notification 102/80.

4. The facts as regards this case are that on 24-3-81, the appellants cleared two barges under Gate Pass Nos. 1 and 2. The aggregate value of the barges was Rs. 37,20,250.87. The appellants paid a duty of Rs. 57,620.07 under protest in respect of the barges. They submitted their RT-12 returns in respect of the said barges but the assessment was kept pending. The appellants represented to the jurisdictional Assistant Collector that the barges were nothing else but ocean-going vessels and that they were entitled to the refund of the duty paid. They made a representation to that effect on 5-5-81. They submitted a refund claim on 15-6-81. On or about 20-7-81, the appellants received an Assessment Memorandum from the Superintendent, Central Excise, seeking to raise a further demand of Rs. 48,000/- on the excess clearance of Rs. 6 lacs. The appellants claimed exemption upto Rs. 30,00,000/-. By his Order dated 18-8-81, the Assistant Collector rejected the contention that the barges manufactured by then were ocean-going vessels within the meaning of the term as contained in Notification No. 55/75. The Asstt. Collector relied on