1. This is an appeal filed by the Addl. Collector of Central Excise Bombay-II against the Order No. V-2115AA) 1736/79 dated 22-5-82 passed by the Appellate Collector of Central Excise, Bombay. M/s. Hico Products Pvt. Ltd., Khopoli have also filed a cross objection No. 1/83 dated 17-1-83 in this case. Shri Pattekar has argued on behalf of the Addl. Collector of Central Excise Bombay-11 that both D.B.S.B. and Modified Acid Slurry are finished products commercially known to the market by their respective names. Since they are different products, the levy of duty on both, even though classifiable under Item 15-AA is correct. He has drawn our attention to Rules 9 and 49 of the Central Excise Rules, 1944 as modified, in this behalf to sustain his contention. He has sought to rely on the ratio of the Bombay High Court in the case of Indian Vegetable Product Co. Ltd. v. Union of India as reproduced in R.K. Jain's Excise Guide, Page 64. As per this judgment, intermediate product is liable to duty even if the same is not physically removed from the manufacturing premises. Shri Pattekar has further pointed out that in the classification list submitted by M/s.
Hico Products Pvt. Ltd. they have entered rate of duty as 12% against both the items and if it had been their intention to claim the benefit of Notification No. 101/66 they should have specifically asked for this benefit in the classification list. He has, therefore, submitted that the order of the Appellate Collector of Central Excise is wrong and that the same be set aside and the Order No. V(RC)-9/78-79 dated 13/16-7-79 of the Asstt. Collector Central Excise, Kalyan I Divn. be restored under which M/s. Hico Products' claim for refund was rejected.
Shri Tamhane for the Company has submitted that both the D.B.S.B. and Acid Slurry fall under Item 15-AA. Since the classification of the product does not change under the Central Excise Tariff when D.B.S.B.is converted into Acid Slurry, there is no manufacture of a new product in terms of Section 2(f) of the Central Excises and Salt Act, 1944 and therefore duty is not chargeable once again on Acd Slurry. In this behalf he has relied on the decision of the Govt. of India as reproduced in E.L.T. 1980, Page 649. He has also drawn our attention to Notification No. 118/80 dated 19-7-80 under which explanation to Rule 56-A was added to permit a manufacturer to take proforma credit of goods manufactured by him and used captively in his own factory. He has also pointed out that the Addl. Collector's appeal is time-barred. He has ventured to suggest that this appeal has been filed for delaying the payment of the amount of refund due to M/s. Hico Products (P) Ltd. under the order of the Appellate Collector of Central Excise and he has requested the Tribunal to direct the Collector to sanction the refund within a specified time limit.
2. We have examined the submissions on both the sides. Before we go into the merits of the case, we have to consider the plea of M/s. Hico Products Pvt. Ltd. that the appeal preferred by the Addl. Collector of Central Excise, Bombay-II is time-barred under Section 35-B of the Central Excises & Salt Act, 1944. Examining this contention it is seen that the Appellate Collector's order dated 22-5-82 was communicated to the Collector of Central Excise Bombay on 29-5-82 and his appeal has been received in this office on 29-11-82. The appeal is, therefore, filed within the time-limit prescribed under Section 35-B read with the Customs, Central Excise and Gold (Control) Removal of Difficulties order, 1982. Accordingly, we proceed to consider the same on merits. We find that the Appellate Collector's decision to hold that both D.B.S.B.and Acid Slurry are classifiable under the same Item 15-AA and that therefore no further duty is leviable on Acid Slurry when the same is produced out of D.b.S.B. is correct. In that case, we hold that duty should not have been paid on Acid Slurry when it was manufactured out of D.B.S.B. which had paid duty under Item 15-AA. The Appellate Collector has,, further, decided correctly the applicability of time-bar under Rule 11 as then in existence and directed the refund of that amount of duty which was claimed within the time limit.
Accordingly, we find that the Appellate Collector's order is correct and that there are no grounds for modification of the same. In this view, we are of the view that the appeal of the Addl. Collector of Central Excise Bombay-H is liable to be dismissed. As regards the cross-objection filed by- M/s. Hico Products Pvt. Ltd., we find that it merely seeks to uphold the Appellate Collector's order and the cross-objection seems to have been filed through misunderstanding of law. No variation of Appellate Collector's order is sought by the cross-objection. As regards the request that there is a delay in paying the refund consequent to the Appellate Collector's order dated 22-5-82, we see no reason to accept the same and therefore there is no justification in the grant of plea of M/s. Hico Products Pvt. Ltd. that we should direct the Collector of Central Excise, Bombay-II and his officers to repay the amount within a stipulated period. This is a matter which is left to the discretion of the jurisdictional officers.
In view of these findings, we reject the appeal of the Addl. Collector of Central Excise, Bombay-II and dismiss the cross-objection of M/s.
Hico Products Pvt. Ltd. as not sustainable.