Per J.H. Joglekar :

The appellants in this case were manufacturing ceiling fan covers and clearing the same under the concessional rates prescribed under notification no. 175/86-CE dated 1.3.86. These goods were supplied to M/s. Agra Engineering Industries, a company belonging to the Jay Engineering Group, who manufacture ceiling fans with the brand name 'Usha'. On 29.3.88, a show cause notice was issued to the effect that since the covers manufactured by them were with the brand name of a manufacturer who was not entitled to the benefit of the notification, the clearances of such covers should have been made on payment of duty. The differential duty was demanded vide the show cause notice. The Asstt. Collector after hearing the assessees confirmed the demand. His order was upheld by the Collector (Appeals) resulting in the present appeal coming up before us.

2. Shri A.R. Madhav Rao, Advocate arguing for the appellants referred to both the lower orders in which the claim was made before the original authority as well as the appellate authority that the appellants had put the brand name 'Usha' only with effect from March, 1988 due to the insistence of the buyers to that effect and therefore the demand for the period October, 1987 to March, 1988 was wrongly made. He submitted that the correspondence between the appellants and their buyers was placed before the Asstt. Collector who termed the correspondence as fabrication. He submitted that if the Asstt. Collector had any doubts on perusal of the photocopies of the record, he could have asked to see the correspondence. It was claimed that the Asstt. Collector had without any evidence dismissed as fabricated the correspondence between the buyers and the clients. He further claimed that the existence of 12,280 sets with the brand name could not give rise to the belief that from October, 1987 the brand name had been embossed on all covers. The partner of the firm had signed the RG-I register merely to accept the fact that the number of fan covers shown were actually in existence. It did not amount to admission of any other allegation. Ld. Advocate further submitted that the covers consisted of top cover and bottom cover. The brand name was embossed only on the top cover and the bottom cover was not so embossed. Therefore the quantum of demand was clearly overstated. Ld. Advocate also placed on record a copy of the CBEC circular no. 71/71/94-CE dated 27.10.94. In this circular with reference to notification no. 1/93 it has been clarified that where goods such as electricity meters which are not meant for sale and which are not embossed to bring out the connection during the course of trade are not hit by the mischief of this notification. It was his claim that the provisions of notification nos. 1/93-CE and 175/86-CE being identical the clarification for the latter notification could apply to the former notification also. He submitted that the Tribunal in the judgement in the case of CCE, New Delhi Vs. Astro Auto Industries reported at 1995 (8) RLT 343 = 1995 (78) ELT 239 has held that where the clarification was issued by the Board subsequent to the passing of a particular decision, the issue was required to be referred back. It was his submission that on this account also the order be set aside.

3. Shri S. Nunthuk appearing for the department supported the Collector's logic and also claimed that the clarifications issued with reference to a latter notification may not apply to an earlier notification.

4. We have carefully considered the submissions made by both the sides and have seen the cited circular as well as the cited judgement.

5. Before the Asstt. Collector the claim was made that the embossing of the covers with the brand name commenced only in March, 1988 and not from October, 1987. The two grounds on which the Asstt. Collector rejected this claim have not been substantiated by him. The fact that the partner had signed the RG-I register does not automatically establish th