S. Venkatesan, Vice-President

1. These three appeals arise out of the Order-in-Revision No. 23-R/84, dated 16-4-1984 passed by the Central Board of Excise and Customs under Section 35A, Central Excises and Salt Act. By that order, the Board set aside the Order-in-Original No. V. 52(30) 3/74-CXI, dated 7/10-11-1975 of the Assistant Collector of Central Excise, Bhavnagar, in which he had held that the hub-bolts manufactured by the appellants were not excisable under item 52 of the Central Excise Tariff Schedule. The Board further set aside three refund orders, all dated 3-3-1976, passed by the said Assistant Collector in pursuance of his first order, and pertaining to duty paid during different periods.

2. At the start of the hearing, the Bench pointed out to Shri Jhunjhunwala, the learned Advocate for the appellants, that since there were in effect four orders of the Board, there should have been four (and not three) appeals to the Tribunal. Shri Jhunjhunwala undertook to file one more appeal, but requested that in the meantime the hearing might be proceeded with. We, accordingly, proceeded on the understanding that the present hearing would not cover the appellants' case relating to duty of Rs. 13,271.82 paid during the period 6-11-1975 to 8-11-1975, which would be covered by the further appeal to be filed.

3. Shri Jhunjhunwala raised a preliminary point that the order of the Board in this case was without jurisdiction. He pointed out that the show cause notice initiating the proceedings was issued on 1-11-1976, whereas the Board's order was passed on 16-4-1984. In the meantime, that is with effect from 11-10-1982, Section 35A, Central Excises and Salt Act, under which the show cause notice had been issued, was superseded and the Board thereafter had no powers of revision. Therefore on 16-4-1984 when the Board's order was passed the Board had no power to pass such an order and it was, accordingly, without jurisdiction, since the proceedings must be deemed to have lapsed. In this connection Shri Jhunjhunwala referred to the judgment of the Allahabad High Court in the case of Ajanta Paper Products v. Collector of Central Excise, Kanpur (1982 E.C.R. 173D).

4. The Bench drew the attention of Shri Jhunjhunwala to the provisions of Sub-section (3) of Section 35P, Central Excises and Salt Act. Shri Jhunjhunwala submitted that Section 35P related only to transfer of pending proceedings to the Tribunal and did not authorise the continuance of proceedings by the Board.

5. Shri Jhunjhunwala also made a passing reference to the fact that Rule 11 of the Central Excise Rules had been rescinded and replaced by Section 11A of the Central Excises and Salt Act, but did not pursue this point, when it was observed that no reliance had been placed on Rule 11 in the cases before us.

6. Shri Jhunjhunwala then turned to the merits of the case, which relates to the question whether the goods under consideration, known as "hub bolts", were classifiable under Item 52 of the Central Excise Tariff Schedule, covering "Bolts and Nuts, threaded or tapped, and screws ...", or under Item 34A ibid (which at the relevant time covered "Parts and accessories of motor vehicles not otherwise specified"). The Board held that the goods were classifiable under Item 52. The case of the appellants was that they were classifiable under Item 34A, read with exemption Notification No. 99/71, dated 29-5-1971, by virtue of which all goods classifiable under Item 34 A, except those listed in the notification were exempted from duty. Admittedly, hub-bolts were not among the articles listed in the notification and therefore, according to the appellants, they were entitled to exemption from duty.

7. Shri Jhunjhunwala took us through the appellants' reply dated 3-1-1977 to the show cause notice issued by the Board. He laid stress on the use of the goods, which has been explained in detail in paras 12 to 14 of the reply to the show cause notice, which are reproduced below :-

"12. Now,