D.M. Ghandrasekhar, J.
1. In this petition under Article 226 of the Constitution, the petitioners have prayed for quashing the order of the Asstt. Collector, Central Excise, dated 23-5-1970, the appellate order of the Appellate Collector, Central Excise, dated 28-5-1973 and the order of the Central Govt. dated 30-9-74, passed in revision.
2. The petitioners are manufactures of brass cylinders, pipes and tubes. The Central Excise authorities levied excise duty on the goods manufactured by them and they paid the duty. Subsequently they made an application to the Supdt., Central Excise claiming refund of excise duty paid by them. Their claim for refund was on the ground that the goods manufactured by them had been exempted from excise duty under a notification issued by the Govt. of India. The claim for refund was rejected by the Astt. Collector, Central Excise, Rampur, against whose decision the petitioners filed an appeal which was dismissed by the Appellate Collector of Central Excise. The Revision against his order was dismissed by the Central Government. The orders of all these authorities have been assailed in this petition.
3. In order to appreciate the contentions on behalf of the petitioners, it is necessary to refer to the relevant provisions of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) and the notification thereunder relied on by the petitioners.
4. Section 3 of the Act provides, inter alia, for levy of excise duty on goods manufactured in India at the rates set out in the First Schedule to the Act. Item 26A in that Schedule reads:-
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5. By Notification No. 119/66-Central Excises, dated 16-7-1966, as amended by Notifcations dated 4-3-1967 and 1-3-1969, the Centra! Government exempted from excise duty copper and copper alloys in any crude form including ingots, bars, blocks, slabs, billets, shots and pellets falling under sub-item (1) and wire bars, wire rods and castings of copper and copper alloys falling under sub-item (la) of Item 26A, if made from any of the following materials or a combination thereof:
(i) Old scrap of copper or copper alloys: or
(ii) Scrap obtained from copper or copper alloy where the prescribed amount of duty of excise, or, as the case may, the additional duty leviable under Section 2A of the Indian Tariff Act, 1934 (32 of 1934) has been paid on the copper or the copper contents of alloys ;
* * * *(iv) Copper or copper alloys in any crude form purchased from the market or after the 20th day of August, 1966.
The above notification was deemed to have taken effect from the 24th of April, 1962.
6. The petitioners had filed under Rule 173B of the Central Excise Rules, 1944 (hereinafter referred to as the Rules), a list of goods for approval of the Excise authorities. In that list the petitioners had described their goods as 'brass cylinders, pipes and tubes'. In the order dated 19.5.77, passed in a review case by the Central Government, the goods manufactured by the petitioners, namely, brass cylinders, pipes and tubes, were treated as 'castings' falling under sub-item (la) of Item 26A in the First Schedule to the Act.
7. In their claim for refund of excise duty the petitioners have alleged that they had manufactured brass cylinders out of old scrap of copper and copper alloys i.e., the materials mentioned in clause (i) of the aforesaid notification. However, in the course of their appeal they based their claim for exemption on the ground that the brass cylinders were manufactured out of crudemetal. The Appellate Collector rejected their plea in the appeal oh the ground that it was nothing but an after-thought and that there was no documentary evidence to substantiate their plea that they had used crude metal in any of the forms mentioned by them for manufacturing brass cylinders.
8. In the revision also the petitioners claim for exemption was rejected by the Central Government on the ground that the bases information produced by them did not indicate that the copper bought by them from the market, was in crude form.
9. Though the petitioners have shifted their stand as to the classif fication under which their manufactuied goods fell and as to the nature o-the raw material used by them, there was no impediment for the Central Excise authorities ascertaining the correct position and deciding their claim for exemption on the basis of the true position.
10. When the Central Government had, in its order dated 19-5-1977 See 1977 E.L.T. (J 33) in respect of a subsequent period, held that brass cylinders manufactured by the petitioners fell within sub-item I(a) of Item 26A of the First Schedule to the Act, there is no reason why these goods should not be trcated as falling in the same classification for an earlier period also. Under the aforesaid notification the goods falling under Item I(a) were exempt from excise duty, if they were made from old scrap of copper and copper alloys where the prescribed amount of excise duty or additional excise duty has been paid on the copper or copper contents of such alloy. As the petitioners had claimed that their goods were manufactured out of old scrap of copper and Copper Alloy, the Central Excise autuhorties should have examined the claim for refund on the above basis. As the authorities did not do so, the impugned orders are clearly unsustainable. They should be directed to decide, afresh the petitioner's claim for refund on the above basis.
11. In the result, we allow this petition, quash the impugned orders of the Asstt. Collector, the Appellate Collector. Central Excise and the Central Government passed in revision and direct the Asstt. Collector of Central Excise to examine and decide afresh the petitioner's claim for exemption in the light of the aforesaid elucidation of the legal position and refund to the petitioner the excess amount, if any, excise duly collected from them.
12. In the circumstances of the case, we direct the parties to bear their own costs.