Per P.C. Jain :

Matter called. None for the respondents despite the notice of hearing having been sent by Registered Post on 25.11.97. In that circumstances, we have heard the ld. JDR, Shri R.K. Roy in support of the Revenue's Appeal.

2.1 Briefly stated, facts of the case are as follows:-

2.2 The respondent herein is a manufacturer of slit gummed paper tapes and that the case of the Department was that the respondent did not declare the proper value for the purposes of assessment of Central Excise duty inasmuch as according to the Department some of the goods were being sold to a related person who supplied paper and gum. The matter went up in Appeal to the Tribunal. It was brought to the notice of the Tribunal by the ld. advocate appearing for the appellant (now respondent) that the Tribunal in the case of Straw Board Manufacturing Company Vs. Collector of Central Excise, Meerut [1990 (29) ECR 67] held that slitting gummed paper reels into strips is not manufacture. Therefore, ld. advocate, Shri N. Mookherjee before the Tribunal in that case raised a point that the excise duty could not be levied on those goods and if the matter in looked at from that angle, the entire dispute disappears and the appellants need not pay any duty on those goods.

2.3 Ld. SDR, Shri Singh appearing for the Revenue before the Tribunal submitted that the ratio of the judgment cited by the ld. advocate, Shri Mookherjee is quite clear but the Collector's order and other documents did not show the process of manufacture, especially raw materials used. The ld. Representative submitted that if the respondents made the gummed tapes out of kraft paper, the ratio of the judgment in the case of Straw Board (supra) would squarely apply but if the tapes were made of other raw materials, like plastic etc., the ratio would not be applicable. Ld. SDR, Shri Singh suggested that the matter might be remanded to the Assistant Collector so that the factual position might be verified and the relief granted to you.

2.4. In the aforesaid circumstances, the Tribunal vide its order No. 1420/90A dt. 6.9.90 vacated the impugned order No. CPO/Collr/24/81 dated 22.5.81 passed by the Collector of Central Excise, Calcutta with the direction that he should examine the process of manufacture and if it is found that such process was the same as the one in Straw Board's case (supra) decided by the Tribunal he should extend with benefit of the ratio of the judgment to the respondents. If not, he should pass a fresh order bringing out the factual position and recording why the ratio of the said judgment could not be extended to the respondents herein.

2.5 The impugned order passed by the Collector is in pursuance of the aforesaid direction of the Tribunal in its order dated 6.9.90 (supra). The Collector has found that the process of manufacture undertaken by the respondents is the same as that of Straw Board and consequently, he has allowed the benefit to the respondents and set aside the demand of duty of the goods falling under Tariff Item 17(2) and not under Tariff Item 60 of the erstwhile Central Excise Tariff. It is against this order of the Collector passed on 25.9.91 that an application has been moved by the Collector under Section 35E on the direction of the CBEC in exercise of its power in that Section. The Board observes in its order dated 9th September, 1992 that the impugned order passed by the Collector is not legal and proper inasmuch as the case of Straw Board Manufacturing Company Ltd., Saharanpur, the respondents herein were not identical. In the former case, the point of dispute was 'classification' whereas in the present case, the point of dispute is 'valuation'. It has also been pointed out that the question of classification was neither raised at the original adjudication stage nor before the Board at the Appeal stage, nor before the Calcutta high Court at writ petition stage, not at the Revision application stage which application was subsequently transferred to t