S. Dnggal, Member (J)

1. These proceedings, since transferred to the Tribunal pursuant to the provisions of Section 35P(2) of the Central Excises and Salt Act, 1944 (hereinafter referred to us the Act), arose as a result of rejection of claims for refund of duty paid, that had been filed by M/s. Smith and Nephew (India) Limited. The two refund claims, filed separately by the said company, dated 22-8-1973 and 23-8-1974 covering the period June 1971 to July 1973 and August 1973 to July 1974 respectively, were disallowed by one common order dated 5-12-1974 passed by Assistant Collector of Central Excise, Bombay-I Division. The appeal against the said order was also rejected by the Appellate Collector of Central Excise, by his order dated 3-12-1975.

2. In the meantime, on an order of amalgamation having been passed by High Courts of Bombay and Karnataka in or about September, 1975, the said company stood merged with J.L. Morison, Son Jones (India) Limited whereby the assets and liabilities of Smith and Nephew (India) Limited stood transferred to, and vested in, the latter company, and it is this second company as successor-in-interest, that filed the revision petition to Government of India and the same has been transferred to the Tribunal to be treated as if it were an appeal. It is registered as such, and taken up for disposal, after hearing notice to the party.

3. The subject-matter of the refund claims, were two products of the appellant-company described as:

(i) Paragon Zinc Oxide Adhesive Plasters B.P.C., and

(ii) Elastoplast Electric Adhesive Bandages B.P.C.

Although it is not indicated on the record as to at what point of time, the manufacture of the products was undertaken, but the disputed period starts from the time when Tariff Item 60 was introduced in the Central Excise Tariff (hereinafter referred to as the C.E.T.), that is, with effect from 1971. It appears that the appellants themselves classified the subject goods as falling under newly introduced T.I. 60, which covered "Adhesive tapes all sorts, not elsewhere specified". Duty, as per Scheduled rates, was levied accordingly, which the party duly paid.

4. Contention was raised subsequently to the effect that these goods were in the nature of surgical dressings, and would not fall within the category of adhesive tapes, within the contemplation of T.I. 60. Asserting that the duty had been paid erroneously and inadvertently, claims for refund, as stated above, were filed under the provisions of Rule 11 of the Central Excise Rules, 1944 (hereinafter referred to as the Rules).

5. These claims were rejected by the Assistant Collector, as already observed, on the view that every surgical dressing could not be treated as a medicinal preparation, and in order to qualify for such a treatment, it had to be shown that they were composed of some medical substance, and as such fell within the description of medical preparation, as envisaged by T. I. 14-E. Holding that in the instant case, no such evidence had been placed on record, and observing that Zinc Oxide plaster B.P.C. has no therapeutic properties and that adhesive tapes were used mainly as a supportive for holding dressings, he held that these could not, as such, fall within the ambit of T.I. 14-E, and that that mere fact that these types of adhesive tapes were manufactured under Drug Manufacturing Licence and had been described in the British Pharmaceutical Codex (BPC for short) as surgical dressings, would not be determinative of the fact to take them outside the scope of T. I. 60 which, in the Assistant Collector's view, was broad based, and embraced surgical tapes as well.

6. An appeal was carried against this rejection of the refund claims to the Appellate Collector, but the same was rejected. The view of the Assistant Collector was confirmed without recording any reasons on merits of the contentions canvassed by the party, holding that since appellants had not come up in appeal, as provided by provisions of the C