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TMI Blog1987 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... Before the arguments started, the learned Councel for the department said that an order passed by the Collector (Appeals) in terms of Section 35E(4) on an application by the Collector of Central Excise is not appealable to the Tribunal, and that the right of appeal in a case like this has not been specifically given as in other cases; therefore this appeal is not maintainable. However in 1986(25) E.L.T. 51 the Tribunal decided that such an appeal was in order. 3. The learned Councel for the manufacturers said that the Assistant Collector had approved the assessment as a bar since the measurement was below 3 mm in thickness and above 75 mm in width; their mill is a merchant/bar mill and cannot produce a strip; it can produce only bars. The strip needs operations for shearing and cutting the edges so that uniform rectangular cross-section is achieved throughout the length of the product. Their bar mill/merchant mill only has two horizontal rollers between which the product is rolled; it is not possible in these circumstances and in the condition of the factory to produce uniform rectangular cross-sections throughout the length of the product. A strip must be in coil form, where as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saria but are known as patti. The product less than 3 mm is never a bar and he referred to IS 1956 part IV 1976 defining flat bar. He also said that the appellate order of the Appellate Collector deals with all the necessary points. As can be seen from page 4 of his order, dated 25-4-1986, he lists five points. The points are : 1. It must be hot or cold rolled product. 2. It must be rolled approximately in rectangular cross-section of thickness usually of 10 mm and below. 3. It should be mill rolled trimmed or sheared edges. 4. It should be supplied in coil or flattened coil (straight length) form and 5. It should not be a hoop or skelp. 8. Each of these points has been dealt with by the Collector (Appeals) and he has proved that the goods are strips and not bars. The learned Councel said that a bar should be over 3 mm; but in deciding this we should not go by the technical point of view but by the common man s point of view; use is a most important criterion. A bar must have strength to hold or lift or support weight. 9. Inspite of the fact that there is overlapping in the definition of different steel products the learned Councel said that the Supreme Court Ruled th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions and tariff rulings, but the fact remains that the assessees followed the rulings and notices and that it was when the department changed its views, the disputes arose which in our opinion were avoidable. 17. The learned Appellate Collector correctly said in paragraph 5 that the Government/Board after consulting various authorities including the Iron and Steel Controller and ISI, issued guidelines from time to time for the proper classification of the various products. At times these clarifications conflicted or overlapped and to obviate these difficulties, the three Tariff Items 25, 26 and 26AA were replaced by one Tariff Item 25 which incorporated statutory tariff descriptions of the products. All the appeals were with respect to products of rectangular cross-sections having thickness below 3 mm and width 75 mm and above. The learned Appellate Collector takes the definition (XIV) in the new Item 25 which defines a strip as a hot or cold rolled product, rolled approximately in rectangular cross-section of thickness usually of 10 mm and below with mill rolled, trimmed or sheared edges and supplied in coil or flattened coil (straight length) form . He came to the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under Tariff Item 26AA(ia). 19. We have seen varying definitions put up by the various authorities. In a circular letter No. 139/43/77.CX.IV, dated 13-4-1982. The Board instructed that in the revised definition given, a bar of rectangular thickness below 3 mm would be classified as bar without reference to the width. In another circular letter, dated 17-6-1982 the Board gave the direction that the revised definition of the bar would cover all rectangular products of thickness below 3 mm and width 75 mm or more. For example a rectangular product having thickness 3 mm and width 50 mm or thickness 1.75 mm and width 127 mm would classifiable as bar only. Hot rolled flat products of thickness less than 3 mm and width less than 75 mm would be classifiable as hoops. 20. However by another letter, dated 7-10-1982 the Board revised the definition again and Ruled that flat products of thickness less than 3 mm and width of 75 mm above but not more than 200 mm would be classified as strips provided they are not covered by the definition of any other products. The hot rolled flat products of thickness less than 3 mm and width less than 75 mm would be classifiable as hoops. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is superiors to change the assessment simply because they changed their views and opinions or simply because new instructions have appeared. The instructions that were applied by the Assistant Collector were applicable when he assessed the goods and so we want to see them upheld and not unnecessarily disturbed as they have been in these cases. 23. The learned SDR argued vehemently that a bar must be more than 3 mm in thickness, and he would have a good deal to support him; but unfortunately this would take us neither here nor there. If the definition given by the Board was that a bar should be less than 3 mm, and if the Assistant Collector acting on this instructions assessed goods accordingly, we cannot say he was wrong. As soon as they changed the definition of thickness and width they can assess all goods accordingly; but if the goods have already been assessed we cannot justify reopening of the assessment simply because a new opinion has been formed. The SDR was dissatisfied that the Assistant Collector acted on the advice of the Board, a practice that had been condemned by the Supreme Court in M/s. Orient Paper Mills. But the learned SDR does not see the paradox - he should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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