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 dispute in the present case is with regard to the correct classification under the First Schedule to the Central Excises and Salt Act, 1944 (GET, for short), of a product called "Epoxy Glass Textolite Sheets" manufactured by the appellants. The goods comprise of resin and mineral fibres. On 20-2-1978, the appellants submitted a claim before the Assistant Collector of Central Excise, Calcutta for a sum of Rs. 1,17,675.01 on the ground that, though duty had been paid on the said goods under Item No. 15A(2) GET, the goods were correctly assessable to duty under Item No. 22F CET. In his order dated 15-12-1978, the Assistant Collector stated that since the goods were articles of glass fibre reinforced plastics, classifiable as 'rigid plastic sheets' under Item No. 15A(2) CET, no refund was due. Accordingly, he rejected the claim.

3. Earlier, it appears, the Assistant Collector had in an order dated 26-6-1978, ordered the classification of the very same product under Item 22F from 16-3-1976 and held that the appellants would no longer be eligible to avail themselves of the procedure under Central Excise Rule 56-A in respect of the resin received by him for the manufacture of the product. It was, thus, that the appellants came to file the refund claim which was rejected by the Assistant Collector by the order dated 15-12-1978 in which he held the product was classifiable under Item 15A (2).

4. The above contradiction was, among other contentions, brought to the Appellate Collector's notice by the appellants who contended that if their product was again to be classified under Item 15A, the Assistant Collector's order denying them the facility under Rule 56-A would be illegal. The Appellate Collector, vide the impugned order, held the product to fall under Item 15-A and the appellants entitled to the facility of Rule 56A. Therefore, he said, they were not entitled to the refund asked for. Consequently, he rejected the appeal. With respect to the first order of 26-6-1978 of the Assistant Collector, he observed that it did not form part of the appeal before him. However, it was wrong and liable to be set aside.

5. We have heard Shri R.M. Das, Consultant, for the appellants and Smt. Vijay Zutshi, S.D.R., for the Respondent.

6. The issue arising for determination is whether the subject product was correctly classifiable during the relevant period under Item 15A (2) CET as held by the lower authorities or under Item 22F as claimed by the appellants.

7. The appellants' contention is that the product contains 61.8% of glass fabric, the balance being comprised of epoxy resin and hardener. The process of manufacture, as described by the appellants, is that glass yarn, on which duty had been paid under Item No. 22F, purchased from the market is woven in the appellants' factory into glass fabric containing 100% glass yarn. (The said glass fabric, it is averred, has been and continues to be assessed under Item 22F). Epoxy resin is applied on the glass cloth by means of a brush and layer after layer is built up to obtain the required thickness. The layers of cloth are then pressed in a hydraulic press with heated platens. The resultant product is called "Epoxy Textolite Glass Sheets".

8. The basis for the contended classification under Item 22F is that-

(a) the product contains 61.8% of glass fabric;

(b) by virtue of Explanation (iv) to Item 22F the product is squarely covered by the said item.

This argument is also supported by the new Explanation as inserted in Item 22F by the Finance Act, 1979 ;

(c) the product is not known in the trade as an Article of plastics but as Article of epoxy glass textolite sheets. The plastic material is present only as a