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Collector of Central Excise Vs. Orissa Cement Ltd. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1984)(17)ELT161Tri(Kol.)kata
AppellantCollector of Central Excise
RespondentOrissa Cement Ltd.
Excerpt:
1. the collector of central excise, bhubaneswar, has filed an appeal being aggrieved from order no. 199/ or/83 dated 6th july, 1983 passed by the collector (appeals), central excise, calcutta.2. briefly, the facts of the case are that orissa cement ltd., rajgangpur, manufacturer of refractory bricks had supplied 2800 nos. of magnesite bricks along with other bricks falling under tariff item no.68 to m/s. tamilnadu steels, arkonam on s.e. railway under g.p. no.3176 dated 27th. nov. '80 on payment of central excise duty @ 8% on the invoice value. m/s. tamilnadu steels had rejected 2662 nos. bricks out of above said supply of bricks and had returned to the consignor, m/s.orissa cement ltd., rajgangpur which was received in the factory on 11th feb. '81 as per intimation under d-3 no. 1 dated.....
Judgment:
1. The Collector of Central Excise, Bhubaneswar, has filed an appeal being aggrieved from Order No. 199/ OR/83 dated 6th July, 1983 passed by the Collector (Appeals), Central Excise, Calcutta.

2. Briefly, the facts of the case are that Orissa Cement Ltd., Rajgangpur, manufacturer of Refractory Bricks had supplied 2800 Nos. of Magnesite bricks along with other bricks falling under Tariff item No.68 to M/s. Tamilnadu Steels, Arkonam on S.E. Railway under G.P. No.3176 dated 27th. Nov. '80 on payment of central excise duty @ 8% on the invoice value. M/s. Tamilnadu Steels had rejected 2662 Nos. bricks out of above said supply of bricks and had returned to the consignor, M/s.

Orissa Cement Ltd., Rajgangpur which was received in the factory on 11th Feb. '81 as per intimation under D-3 No. 1 dated 11th Feb. '81.

The respondent, M/s. Orissa Cement Ltd., Rajgangpur had made a refund claim for Rs. 6,930.52 towards payment of duty already made by the respondent on the return of the rejected bricks. A show cause notice No. V(68)/18/324/81/7191-92 dated 16th Nov. '81 was issued by the Supdt. (Technical), Central Excise & Customs, Rourkela on behalf of the Asstt. Collector of Central Excise & Customs, Rourkela Division desiring the respondent to show cause within thirty days from the date of receipt of the said notice as to why the refund claim should not be rejected. The respondent had filed a reply to the said show cause notice vide letter No. RGGO/Exc/RS/5 dated 20th Jun. '82. The learned Asstt. Collector had rejected the claim of the respondent for refund of Rs. 6,930.52 on the ground that the respondent's claim for refund is not in conformity with Rule 173-L of Central Excise Rules, 1944 as after receiving back the rejected bricks the respondent had re-processed and converted the rejected bricks into mortar and had sold the same to other parties after the payment of excise duty and had held that the respondent did not produce the same class of goods i.e., bricks. Being aggrieved from the aforesaid order the respondent had gone in appeal before the Collector (Appeals), Central Exicise, Calcutta. The Collector (Appeals) had accepted the appeal of the respondent and had held that the mortar and defective bricks are the same class of goods. He had relied on a judgment of Government of India in the case of Brittania Biscuit Co. in Order-in-Revision No. 459 of 1980 dated 19-5-80 reported in 1980 E.L.T. 649. Being aggrieved from the order passed by the Collector (Appeals), the Revenue has come in appeal before this court.

3. Shri A.K. Saha, the learned Sr. D.R. has appeared on behalf of the appellant and has re-submitted the facts stated above. He has pleaded that there is no compliance to Rule 173-L ibid. He has pleaded that bricks and mortar fall under a different class and has pleaded for setting aside of the order passed by the Collector (Appeals) and has further pleaded that the Government of India decision in the case of Brittania Biscuit Co. reported in 1980 E.L.T. 649 is not applicable in this case. He has pleaded that the judgment relied upon by the learned Collector (Appeals) is not applicable in this case as in that case biscuits of different variety were returned and subsequently biscuits of different veriety were prepared. But in the instant case, bricks were sold after payment of excise duty and were received back by the respondent being defective, but instead of re-manufacturing the bricks the respondent prepared mortar and had sold the same after payment of .excise duty. He has cited examples of Exercise Books on composed manure which appear at Sl. Nos. 3 and 11 of the Schedule in Tariff Item 68 at page 777 of the Cen-Cus on Central Excise Tariff 1983-84. He has pleaded that all the items of Tariff Item 68 do not fall under the same class since bricks and mortar do not fall in the same class and as such the same is not in conformity with the provisions of Rule 173-L of the Central Excise Rules, 1944. He has finally pleaded that the appeal filed by the Revenue should be accepted, the order passed by the learned Collector (Appeals) should be quashed and the order passed by the learned Asstt. Collector should be restored.

4. Shri J. Pandey, Dy. Liaison Officer has appeared on behalf of the respondent and has pleaded that the judgment in the case of Brittania Biscuit Co. in Order-in-Revision No. 459 of 1980 dated 19th May, '80 passed by the Government of India and reported in 1980 E.L.T. 649 fully covers the case of the respondent. He has referred to Dictionary meaning of the class which has been referred in the case of Government of India decision. He has also referred to the definition of mortar, refractory on page 269 of 1970 Annual Book of ASTM Standards Part 33.

The same is reproduced as under : "Mortar, Refractory-A finely ground preparation which becomes plastic and trowelable when tempered with water and is suitable for laying and bonding refractory brick." He has pleaded that the brick and the mortar fall in the same class and as such the order passed by the Collector (Appeals) is perfectly in order. He has further pleaded that the provisions of Sub-rule (3) of Rule 173-L ibid are not applicable In the case of the appellant in view of the Government of India decision. He has pleaded for dismissal of the appeal filed by the Revenue.

5. After hearing both the sides and going through the facts and circumstances of the case and the judgment of the Government of India in the case of Brittania Biscuit Co. reported in 1980 E.L.T. 649, I am of the view that the word 'class' in Rule 173-L [(3)(iii)] has to be interpreted in a broader sense. There is no definition of the word 'class' in the Central Excises and Salt Act, 1944 or Central Excise Rules, 1944. I have to resort to the dictionary meaning of the class.

The dictionary meaning of the word'class'in Webster's New National Dictionary is "a group of persons, things, qualities or activities, having common characteristics or attributes, a set, kind, description, piece or variety." The dictionary meaning of the word 'class' as per The Shorter Oxford English Dictionary on historical principles, Vol. I, 1978 Edition, Page 345 is "A number of individuals (persons or things) possessing common attributes, and grouped together under a general or 'class' name; a kind, sort." (not cited by the parties). In the instant case, the respondent had manufactured fire bricks and had paid excise duty on the same but had received back the same being defective and he had complied with all the requirements under Rule 173-L ibid. The respondent had grinded the defective fire bricks and had made the mortar and the same was cleared after payment of excise duty. The excise duty on bricks as well as mortar was paid under the same Tariff Item 68. Thus, fire bricks as well as mortar fall under the same class of goods. There is another Government of India decision in the case of Godfray Phillips India Ltd., Bombay in Order-in-Revision No. 219 of 1976, dated 6th. Feb. '76 reported in 1982 E.L.T. 495. In that case, it was held that the cigarettes returned to their factory for reprocessing under Rule 173-L of the Central Excise Rules, 1944 were of Viscount brand; the tobacco obtained out of these cigarettes was mixed in the production of Cavender brand cigarettes. Viscount brand of cigarettes were manufactured out of a mixture of flue-cured and non-flue cured tobacco, whereas in the Cavender brand of cigarettes the percentage of flue-cured tobacco was higher. It was held that the goods fall in the same class and the classification did not change, (not cited by the parties) I hold that fire bricks and mortar fall in the same class of goods keeping in view the dictionary meaning and the judgment of the Government of India.

6. In the result, I uphold the order passed by the Collector (Appeals).

The appeal filed by the Revenue is dismissed.


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