1. In this appeal, which was originally filed as a revision application before the Central Government, the appellants have challenged the order of the lower authorities demanding Central Excise duty amounting to Rs. 17,033.85 under Tariff Item 33-B of Central Excise Tariff on 22,714 Kgs. of single bare aluminium wire above 10 SWG valued at Rs. 3,37,355.60 cleared from their factory without payment of duty under Rule 50 of Central Excise Rules, 1944 during the period from 30.11.1977 to 31.5.1978. The notice demanding the duty was issued by the Superintendent of Central Excise, MOR IX, Calcutta VII Division vide Notice No. 69 dated 31.5.1978. The demand was confirmed by the Assistant Collector of Central Excise, Calcutta VII Division by his order-in-original No. 13/33-B/DD/78 dated 29.1.1979 and the said order was upheld by the Appellate Collector in the impugned order.
2. We have heard the argument's of Shri Prem Nath Mehra for the appellants. He has argued that in the classification list filed in 1975, aluminium wire above 10 SWG was shown as non-excisable and the same was approved by the Assistant Collector. The said classification could not be amended by the Superintendent of Central Excise by his Notice No. 69 dated 31.5.1978. Assistant Collector indicated the change of classification in his letter dated 18.8.1978. The change, if at all, could take place from that date only. The Superintendent issued the notice changing classification and demanding duty under Item 33-B of the Central Excise Tariff on the basis of the Tariff Advice No. 41/77 dated 30.11.1977. But according to a subsequent Tariff Advice No. 7/83 dated 30.4.1983 such goods were classifiable under Tariff Item 68.
Exemption Notification No. 137/83-CE dated 30.4.1983 also said that bare aluminium wire finer than 3.25 mm (10 SWG) fell under Item 68 of the First Schedule to the Central Excises and Salt Act, 1944. The appellants' goods were not of electrical grade. So, Tariff Advice will not apply to them. No test was conducted of the goods manufactured and cleared by the appellants during the period from 30.11.1977 to 31.5.1978 for which demand was raised. The lower authorities have not given any reason why the goods are held to be classifiable under Tariff Item 33-B. It has also been/stated by Shri Mehra that the appellants stated before the lower authorities that the impugned goods were not of aluminium grade, but those authorities did not give any reasons as to why the goods were held by them to be of electrical grade; the decision of the lower authorities was arbitrary. Shri Mehra has relied on the decision of this Tribunal reported in 1983 ELT 2358 (Rayalaseema Cable Corporation, Cuddapah v. Collector of Central Excise, Hyderabad) in support of his contention that bare aluminium wire of 10 SWG and less does not fall under Tariff Item 33-B of Central Excise Tariff.
3. The learned S.D.R. has stated that the aluminium wire in question was of electrical grade. He has, however, stated that he does not have test report or any other evidenced to show that the goods were of electrical grade.
4. From the arguments of Shri Mehra two main questions arise for determination, viz.; - (i) Whether the Superintendent of Central Excise was competent to issue the demand show cause notice dated 31.5.1978; (ii) Whether the aluminium wires in dispute were of electrical grade to fall under Item 33-B of C.E.T.5. So far as the first question is concerned, we observe that according to definition in Section 2(b) of the Central Excises and Salt Act, 1944, "Central Excise Officer" means, inter alia, any officer of the Central Excise Department. According to Rule 2(xi) of the Central Excise Rules, 1944, "Proper Officer" means the officer in whose jurisdiction the land or premises of the producer of any excisable goods, or any person engaged in any process of production of such goods are situate. According to these definitions, the jurisdictional Superintendent of Central Excise was a Central Excise Officer and also a proper officer in relation to the appellants. He was, therefore, competent to raise demand under Rule 10 of the Central Excise Rules, as in this case. He only issued the Show Cause Notice asking the appellants to show cause to Assistant Collector. The classification was, however, to be decided by the Assistant Collector of Central Excise as done in this case by the order-in-original. According to Rule 10 of Central Excise Rules, a demand for duty can cover a period of six months prior to the date of demand of Show Cause Notice. In this case, demand was raised for a period of six months under Rule 10. There was, therefore, no illegality in the demand notice issued by the Superintendent of Central Excise in this case.
6. So far as the second point of para 4 above is concerned, we find that in the memorandum of appeal filed before the Appellate Collector the appellants raised the points that :- (i) In the adjudication order dated 29.1.1979 the Assistant Collector did not discuss the reasons which necessitated re-classification of the product; and (ii) There was no test report or authoritative opinion to show that single bare aluminium wires above 10 SWG as removed from the factory during the period from 30.11.1977 to 30.5.1978 were of electrical grade.
In the impugned order, the Appellate Collector has not given any findings on the second point. In reply to a query from the Bench the learned Senior Departmental Representative appearing for the respondent has said that he does not have any evidence to show that the wires were of electrical grade. Neither the order-in-original nor the order-in-appeal throws any light as to the basis of holding the wires to be of electrical grade. The copy of the classification list submitted before us describes the goods as "Aluminium Wire above 10 SWG". We do not have any materials before us to give a finding on this point. Consequently, the matter is required to be remanded to the lower authority for de novo examination of this point with reference to the facts and evidences. Accordingly, we set aside the impugned order and remand the case to the Assistant Collector of Central Excise, Calcutta VII Division for de novo examination.