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TMI Blog2001 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... se as these have been designed to bring into existence the chilled iron rolls of specific shape and design. He, further, mentioned that the Deputy Commissioner under the Adjudicating Order 34/99, dated 21-9-1999 confirmed the demand of duty and imposed penalty holding that C.I. castings manufactured by them fall under sub-heading 7207.10 and are not classifiable under heading 84.37 and since the castings were used by them in the manufacture of chilled rolls which were exempted from payment of duty under Notification No. 56/95 the benefit of Notification No. 67/95 was not available. The learned Advocate submitted that heading 72.07 applies to semi-finished products of iron or non-alloy steel and as per Note (ij) to Chapter 72 semi-finished products are continuous cast products of solid section, whether or not subjected to primary hot-rolling; and other products of solid section, which have not been further worked then subjected to primary hot-rolling or roughly shaped by forging, including blanks for angles, shapes or sections; that the process of casting adopted by them is technically called gravity die casting; that they had not adopted the process of continuous casting; that acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er heading 73.15 of the Tariff and as in the show cause notice this heading has not been mentioned, the impugned goods cannot, therefore, be classified under Heading 73.15; that demand cannot be confirmed under a new heading as was held by the Supreme Court in the case of CCE v. Bright Bros. Ltd., 2000 (116) E.L.T. A67 (S.C.). Reliance was also placed on the decision in the case of CCE, Bombay v. Neoluxe India [2001 (128) E.L.T. 298 (T) = 2001 (43) RLT 175] and Mastermind v. CCE, Nagpur [2001 (131) E.L.T. 621 (T) = 2001 (45) RLT 755] wherein it was held that recovery of duty under Tariff heading different from that was proposed in the show cause notice is not permissible. The learned Advocate also mentioned that the Department under Circular No. 1, dated 18-2-1987 had clarified that the important conditions to be satisfied for attracting Interpretative Rule 2(a) for classification of unfinished articles are that the articles must have the essential character of the complete or the finished article which could inter alia be judged with reference to the functional aspect, physical identity and the degree of the completion of the product. The learned Advocate mentioned that viewed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72.07 but under heading 73.25 then only the Dy. Commissioner was duty bound to give his finding about the classification of the product in question; that in absence of any such plea the adjudicating authority was not obliged to change the classification while deciding the matter pertaining to the disallowing exemption under Notification No. 67/95. The learned D.R. also relied upon the decision in the case of Voltas Ltd. v. Collector of Customs, Bombay, 1997 (91) E.L.T. 261 (S.C.) wherein the Apex Court held that once the Tribunal has come to the conclusion after examining the imported goods that the assessment under item 84.18(2) of the goods was wrong and the goods would appropriately be classifiable under heading 84.18(1), there was no reason for the Tribunal merely to dismiss the appeal and uphold the Revenue's contention; that the Tribunal should have given the direction to make the amendment under heading 84.18(1) which was the correct classification. The learned D.R. further mentioned that the issue regarding the classification of the castings has been settled by the Tribunal in the case of Shivaji Works (supra). He also mentioned that every casting will have same shape or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the 'machine part' itself ready for use". The appellants in our view has not brought on record any material or evidence to show that the impugned goods had lost the character of castings. The starting process of making C.I. chilled roll is nothing but casting. We, therefore, do not find any substance in their submissions that the impugned goods are classifiable under Chapter 84. 5. We agree with the submissions made by the learned D.R. that the issue before the adjudicating authority was whether the benefit of Notification No. 67/95 was available to the appellants or not. The issue of classification of the casting was not raised before the adjudicating authority. As rightly emphasized by the learned D.R. the issue raised before the adjudicating authority was that the impugned goods were not castings but were parts of machine falling under Chapter 84. Accordingly the issue of classification which was never earlier raised before both the lower authorities cannot be raised at this stage. All their averments in their reply to the show cause notice were to the effect that the products manufactured by them were not castings but were parts. Even before the lower appellate authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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