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TMI Blog1985 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the period from 1-3-1975 to 22-7-1979. As common questions of facts and law are involved in all these appeals they were taken up together and are being disposed of by this common order. M/s. Indian Metals Ferro Alloys Ltd., Cuttack are being referred to as Appellants and the Collector of Central Excise, Bhubaneshwar as Respondent for the purpose of all the above six appeals. 2. All the appeals are directed against the order dated 13-9-1983 of the Collector (Appeals), Central Excise, Calcutta. The appellants manufacture pipes, tubes, poles, etc. Tariff Item No. 26AA was introduced to the First Schedule of the Central Excises and Salt Act, 1944 on 24-4-1962. Excise duty was collected from the appellants on steel tubes and poles ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 18-6-1977. The appellants were dispatching the electric poles without payment of duty till August 1982. On 8-12-1977 a notice was issued by the Superintendent, Central Excise holding that the poles manufactured by the appellants are classified under T.I. 68 and duty on such goods manufactured after 1-3-1975 till 8-12-1977 had to be realised. The appellants sent a reply on 12-12-1977. They followed it up by filing a Writ Application No. O.J.C. 1072 of 1977 before the Hon ble Orissa High Court. Among others they prayed for injunction restraining the department from in any way acting under letter dated 8-12-1977 (supra). They also prayed for an interim order. On 26-12-1977 interim stay was granted. The appellants filed another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-3-1975 to 21-1-1983 should not be paid. The Assistant Collector by his order dated 30-3-1983 held that the classification list No. 139/75, dated 10-3-1975, the supplementary classification list No. 18/76, dated 10-1-76 and the supplementary classification list No. 192/77 had been approved, that these classification lists had not been reviewed prior to 22-3-1979 and that the goods had to be classified under T.I. 68. It was also held that the demand of duty of ₹ 21,47,940.95P. was in order. There was an appeal to the Collector of Appeals, Central Excise, Calcutta who confirmed the findings but restricted the demand to ₹ 16,04,753.63P. The appellants have filed the present appeals challenging the findings. 5. The Department h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons set out in the Notification. Above all, the Notification itself had been rescinded subsequently. 7. We have now to assess the product on the basis of the Tariff Entry. T.I. 26AA talks of pipes and tubes. We have to find out whether the product in question could be classified as pipes and tubes. The Assistant Collector has dealt with the process in paragraph 4. It is seen from the description that the mother tube is heated to a substantially high degree and shapes and forms are given by a series of processes. The ISI Booklet for tubular steel poles for over-head power lines has distinguished stepped poles and swaged poles. It is therefore manifest that the poles have a distinct name, character and use than the pipes and tubes. 8. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is well settled that if facts are different, further and fresh facts are brought on record, process of manufacture is changed, relevant entries in the tariff have undergone a modification or if there had been pronouncement of a High Court or Supreme Court, the classification approved may be reconsidered and re-opened. [M/s. Nuchem Plastics Ltd., Faridabad v. The Collector of Central Excise, Delhi - 1983 ECR 1888-D (CEGAT) following M/s. J.K. Synthetics Ltd. and Another v. Union of India and Others - 1981 E.L.T. 328 (Delhi)]. In the instant case, after the approval by earlier classification lists, Tariff Item 68 had come on the Tariff. Due to this change in law. Excise authorities could enquire what would be the more appropriate classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether stay continued to operate even after filing the counter. Moreover, this stay was only with respect to notice dated 8-12-77 and not with respect to other notices issued in the case. With respect to this notice, only time between 26-12-77 to 16-3-78 should be excluded and not 26-12-77 to 6-10-82 as found by the lower authorities. 12. In this case we find that the classification list filed on 1.4-7-75 (139/75) was approved. A supplementary classification list No. 18/76 filed on 10-1-76 was approved on 9-4-76. Another supplementary classification list No. 192/77 which was filed on 22-10-76 was approved on 4-8-77 effective from 21-3-79. Though it is open to the department to modify the classification, it cannot be said that there can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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