Judgment:
1. This appeal is filed by the Revenue against the order-in-appeal No.1894-CE/CHD/91, dated 11-10-1991. The brief facts of the case are that the respondents are engaged in the manufacture of M.S. Tie bars falling under sub-heading No. 7302.10 of the Central Excise Tariff Act, 1985.
They were charged for contravention of Rule 9(1) of Central Excise Rules, 1944 for having cleared 265.927 MT of M.S. Tie bars during the period December, 1986 to February, 1987 at Nil rate of duty instead of paying the duty at the rate of Rs. 365/- PMT. A show cause notice was issued by the Superintendent on 27-3-1987 for recovery of duty of Rs. 97,063.35 under Section 11A of Central Excises and Salt Act, 1944. The demand was confirmed by the Assistant Collector vide his order-in-original No. 38/AC/D/89, dated 11-2-1988. Having aggrieved, the party had gone in appeal to the Collector (Appeals) Chandigarh who vide her order-in-appeal No. 184-85/CE/CHG/90, dated 28-2-1990 observed that the inputs out of which these tie bars had been manufactured were clearly recognisable as charged to nil rate of duty. However, keeping in view the assessees plea that that were in possession of some duty paying documents for M.S. Flats, the Collector (Appeals) remanded the matter to the Assistant Collector for possible modification of the demand for duty by allowing Mod vat credit on the basis of duty paying documents produced by the party in respect of inputs in question. This order-in-appeal dated 28-2-1990 was not contested further by the assessee and accordingly further proceedings held culminated in the order-in-original No. 89/AC/D/90, dated 23-8-1990 passed by the Assistant Collector, Central Excise, Chandigarh. The assessee was directed to pay the amount of Rs. 97,063.35.
2. On appeal, the Collector (Appeals), Central Excise, Chandigarh set aside the orders of the Asstt. Collector, Central Excise Division, Chandigarh holding that the inputs used for the manufacture of the excisable goods were bars on which deemed credit accrued to the appellant.
3. Shri Nanak Chand, ld. DR appearing on behalf of the respondent stated that the Collector (Appeals) had erred in extending the benefit to the assessee on the issue of deemed credit inasmuch as this issue stood disposed in the earlier order-in-appeal dated 28-2-1990. Since the assessee had accepted the findings in that order-in-appeal, it was not open to him to reagitate the matter either before the Assistant Collector or the appellate authority. The order had been remanded to the Assistant Commissioner and an opportunity to produce the duty paying documents like GP Is were afforded to them but they had failed to produce the same before the adjudicating authority. As such the demand was rightly confirmed in remand proceedings. Moreover, from a perusal of the produced bill, it is apparent that the inputs were M.S.Flats with specified dimension such as 50 mm x 12 mm, 12 mm x 50 mm and in view of the clear cut description of the inputs as M.S. Flats, it was necessary for the assessee to produce the duty paying documents in compliance to order-in-appeal dated 28-2-1990 and the plea that the inputs were bars and hence entitled to claim credit was not available to the assessee. However, the CEGAT decision in case of Calcutta Steel Industries i.e. -1991 (54) E.L.T. 90 Tribunal relied upon by the appellate authority for the purpose of determination classification of the inputs has not been accepted by the department and appeals have been filed in the Supreme Court. According to the department such inputs in question were 'flats' and not bars. As such the Assistant Collector was right in confirming the demand and the appellate authority erred in setting aside his orders.
4. When the case was called none appeared on behalf of the respondents.
In this case, several opportunities were granted to the appellant to produce the order-in-appeal No. 184-85/CE/CHD/90, dated 28-2-1990 passed by the Commissioner of Central Excise remanding the case back to the Assistant Commissioner but no order was produced. In the impugned order, the ld. Commissioner held that the department's main contention is that M.S. Tie bars are chargeable to duty @ Rs. 365/- PMT and the benefit of exemption in terms of Notification No. 206/83 is not admissible to the appellants on the ground that the appellant's inputs were not bars but flats. The Commissioner relying upon the decision of the Tribunal in the case of Calcutta Steel Industries v. Collector of Central Excise reported in 1991 (54) E.L.T. 90 held that input in question is Bar.
5. The respondents also filed classification list effective from 18-7-1986 claiming the exemption on railway track material i.e. tie bar (cross tie under sub-heading 7302.10 read with Notification No. 208/83, dated 1-8-1983. The classification list was approved by the Assistant Commissioner. Therefore the contentions of the respondent that the inputs out of which the tie bar are made was a bar is accepted by the Commissioner. In view of these facts, I do not find any infirmity in the impugned order. The appeal is dismissed.