2000 (9) TMI 645 - AT - Central Excise

Summary

Issues:
1. Competency of Collector (Appeals) to hear appeal against the Order passed by Additional Collector prior to 14-5-1992.
2. Classification of "Concrete Cubes" as excisable goods under sub-heading 6807.00 of Central Excise Tariff, 1985 and liability to duty before clearance for internal use.

Competency of Collector (Appeals) prior to 14-5-1992:
The appeal challenged the Order-in-Appeal No. 18/Bol/93 of Collector of Central Excise (Appeals), Calcutta, questioning the jurisdiction of the Collector (Appeals) to hear appeals against orders passed by the Additional Collector before 14-5-1992. The tribunal noted that the definition of "Collector" was amended on 14-5-1992, excluding the Additional Collector from the definition for appeal purposes. Therefore, appeals against orders by the Additional Collector before 14-5-1992 should have been made to the Tribunal, not the Collector (Appeals). In this case, as the order was passed on 25-2-92 by the Additional Collector, the appeal should have been filed with the Tribunal. The tribunal found that the Collector (Appeals) lacked jurisdiction to entertain appeals against orders by the Additional Collector before 14-5-1992. However, since the matter reached the Tribunal and a decision on merits was made, the issue was considered resolved despite the jurisdictional error.

Classification of "Concrete Cubes" for excise duty:
The case involved manufacturers of "Concrete Sleepers" which included "Concrete Cubes" under sub-heading 6807.00 of the Central Excise Tariff, 1985. These cubes were used for testing the comprehensive strength of the concrete for manufacturing sleepers. The Revenue contended that the cubes were also captively used for ground decoration and fencing within the factory premises, leading to a demand for central excise duty. The respondents argued that the cubes, meant solely for testing, did not meet the marketability criterion for excise duty. They emphasized that after testing, the cubes were used as flower pots within the factory, which did not make them marketable. The tribunal examined the agreement between the respondents and the Railways, the purpose of testing the concrete strength, and the subsequent use of the cubes. It was observed that the cubes, post-testing, were not marketable and their use as flower pots did not change their marketability status. Consequently, the tribunal held that the cubes were not liable for central excise duty, siding with the respondents' argument and rejecting the Revenue's demand.

Conclusion:
The tribunal rejected the Revenue's appeal, upholding the decision that the "Concrete Cubes" were not subject to central excise duty due to their non-marketability post-testing. Despite the jurisdictional error in approaching the Collector (Appeals) instead of the Tribunal for appeals against orders by the Additional Collector before 14-5-1992, the tribunal considered the issue resolved as the matter reached a final decision on merits.