Customs, Excise and Gold Tribunal - Delhi
Finolex Cables Ltd. vs Collector Of Central Excise on 24 April, 1995
Equivalent citations: 1996(86)ELT418(TRI-DEL)
ORDER K.S. Venkataramani, Member (T)
1. These two appeals one by the Assessee appellant and the other by the Collector of Central Excise, Pune have been filed against the order-in-appeal, dated 11-3-1992 passed by the Collector of Central Excise (Appeals), Pune. The Assessee appellant herein are manufacturing insulated wires and cables falling under Heading 85.44 and PVC compound falling under Heading 39.04 of the Central Excise Tariff Act, 1985. They filed a classification list effective from 1-3-1986 claiming the scrap of PVC insulated electric wires and cables having copper and aluminium conductor as non-excisable goods. They also filed another classification list effective from 8-10-1986 in respect of PVC compound describing the goods as scrap of PVC compound and claiming classification under heading 3904.00 with duty at 30% under Notification No. 418/86. The jurisdictional Assistant Collector of Central Excise Pune passed an order, dated 10-4-1987 classifying the scrap of electric wires and cables under heading 8544.00 and approved classification of scrap of PVC compound under heading 3915.00 liable to duty of 40% ad valorem. The assessee appellant filed an appeal to the Collector of Central Excise (Appeals), Bombay against the Assistant Collector's order and the Collector (Appeals) by his order, dated 26-5-1988 set aside the Assistant Collector's order and remanded it for observing principals of natural justice. Accordingly, the Assistant Collector adjudicated the matter afresh and passed his order on 1-4-1991 after issuing of a show cause notice as to why the scrap of wires and cables be not classified under heading 8544.00 because of the fact that there is no distinction between the longer length and short length of such wire cables in the tariff heading or in the Chapter or Section Notes. They were also asked to show cause why the scraps of PVC compound for which they are claiming the classification under heading 3904.00 be not classified under heading 3915.00 with rate of duty at 40% adv. under Notification No. 132/.86 on the basis of the fact that the products scrap of PVC compound which itself is that of plastic and as such it is appropriately classifiable under heading 3915.00. The assessee appellant defence was that scrap of wire and cables can be excisable only when it is specifically mentioned in the tariff. They also relied in this regard on a circular by the Central Board of Excise and Customs, dated 6-7-1964 recognising the fact that in the manufacture of wires and cables certain quantity of such wires and cables are required to be scraped due to manufacturing defects. Regarding scrap of PVC compound, the assessee pleaded they had no objection to paying duty under heading 3915.00 at 40% ad valorem. The Assistant Collector held that for the purposes of classification under 85.44, there is no distinction between long length and short length. He is also of the view that the Board's Circular relied upon by the assessee, are not relevant for the tariff heading under the Central Excise Tariff Act, 1985. Regarding the scrap of PVC compound, the Assistant Collector noted that the assessee had accepted the classification of the product under heading 3915.00 and accordingly he approved the classification and rate of duty. The assessee filed appeal against this order of the Assistant Collector. The Collector (Appeals) in his impugned order held that in the absence of a specific entries for the waste scrap of wires and cables in the Central Excise Tariff, the said waste is not excisable but he felt that it was at the same time necessary to ensure that the said material is actual waste and scrap and not fit for marketing as wires and cables. For this purpose, the Collector (Appeals) observed that the instructions of the Central Board of Excise and Customs, dated 6-7-1964 will be relevant which were designed only to make sure that there was no such misuse. The Collector (Appeals) over-ruled the Assistant Collector's finding that these instructions had ceased to be relevant under the Central Excise Tariff Act, 1985, by saying that the Board's instructions have nothing to do with the tariff but was only designed to make sure that wires and cables which were claimed to be scrap should actually be converted into scrap by following the method prescribed in the instructions. The Collector (Appeals) further observed that in the course of manufacture of any product some waste and scrap is bound to arise and he noted that this fact is recognised in Rule 57D of the Central Excise Rules related to MODVAT where it is mentioned that MODVAT Credit should not be denied or varied on the ground that part of the input on which the credit has been taken is contained in any waste refused or by product arising during the manufacture of the final product whether or not such waste etc is exempt from duty. The Collector (Appeals), therefore, directed that the assessee should follow the procedure of 6-7-1964 of the Board and the goods can be cleared without payment of duty if the Central Excise Officer is satisfied that it has been rendered into scraps. In so far as the scrap of PVC compound is concerned, the Collector (Appeals) held that the goods are classifiable under 3915.00 Central Excise Tariff and liable to duty as per Notification No. 132/86.
2. The assessee appellant herein thereafter filed the present appeal before the Tribunal. They also filed a Writ Petition before the Bombay High Court on the same issue of classification arising out of a show cause notice of 16-6-1994 issued by the jurisdictional Assistant Collector. The Hon'ble High Court of Bombay finally disposed of the Writ Petition by its order, dated 2-9-1994 in Writ Petition No. 2990 of 1994. The Court noted the fact that the appeal in the matter is also pending before the Tribunal and directed inter alia as follows :-
"(a) The Customs, Excise and Gold (Control) Appellate Tribunal is directed to decide inter alia the following questions :-
(i) Whether item of waste and scrap of wires and cables is excisable? Whether the said item is classifiable under Tariff Item No. 8544 of the Central Excise Tariff?
(ii) Whether the scrap of PVC composite is excisable as held by the Collector of Customs (Appeals) by his order under appeal.
(iii) All ancillary matters and other disputes concerning the above referred issues arising out of order dated 11th March 1992 including the dispute in respect of past clearance without the physical supervision of Excise officers as stipulated in the above referred circular of the Board."
The High Court also permitted the Revenue to file an appeal if they are so advised against that part of the orders of the Collector (Appeals) with which the Revenue may be aggrieved in pursuance of which the Collector of Central Excise Pune has filed the present appeal of the Department.
3. Shri B.N. Rangwani, the learned Consultant appeared for the assessee appellant submitted that the scrap and electric wires and cables are not marketable as such they are also governed by Statutory Regulation which prohibit the marketing of sub-standard or defective wires and cables. The learned Consultant submitted that in respect of demand of duty on scraps of PVC compound under heading 3915.00 Central Excise Tariff. The Serial No. 39 of the Table to Notification No. 132/86 would show that goods falling under headings 3901 and 3915 are subject to duty at 40% ad valorem. The scrap of PVC compound, it was contended is liable to nil duty exemption as per Serial No. 24 of Notification 53/88. It was pleaded that the Collector was wrong in holding notification applicable to scrap of PVC compound as 132/86 but the Collector ought to have held that the goods are covered by Serial No. 1 of Notification No. 222/86 at nil rate of duty and by Serial No. 24 of Notification No. 53/88. The learned Consultant also submitted that the assessee appellant had applied before Collector (Appeals) for amendment of their appeal Memorandum before the Collector (Appeals) and referred to the papers at Annexure XXIII at Page 65 to 67 of the Paper Book. In this the assessee appellant have added the ground that they have been paying duty at 40% ad valorem but they have come to understand in view of various judicial pronouncement waste scrap of PVC compound is assessable to nil rate of duty under Serial No. 24 [of] the Table to the Notification No. 53/88, dated 1-3-1988 as amended. In view of (sic) this, the appellants have submitted that waste and scrap of plastic including that of PVC compound though classifiable under Heading 39.15, the scrap should be subject to nil rate of duty. They had also sought the grounds of appeal before the Collector (Appeals) by submitting that waste of PVC compound generated in the manufacture of electric wires and cables falling under Chapter 85 of the Tariff Schedule should be assessed to nil rate of duty under Serial No. 24 of Notification No. 53/88. Shri Rangwani, the learned Consultant submitted that this amended appeal petition before Collector (Appeals) does not seem to have been considered by Collector (Appeals) by passing this impugned order. The learned Consultant further submitted that under Notification No. 222/86, dated 3-4-1986 at Serial No. 1 thereon waste and scrap of plastic falling under Heading 39.15 is specifically exempted subject to the condition therein. The learned Consultant further pointed out that Notification No. 132/86, dated 1-3-1986 at Serial No. 6 exempts plastic material commonly known as PVC falling under heading 3904.20 to nil rate of duty. In the same notification at Serial No. 39 all goods falling under heading 3901 to 3915 are subjected to exempt duty at 40% ad valorem. It was submitted that these entries in this notification have to be read with the relevant entries in Notification No. 222/86 and the assessee appellant herein satisfy the conditions for such exemption under Notification No. 222/86. The learned Consultant further relied upon the decision of the Tribunal in the case of Collector of Central Excise, Bangalore v. Mysore Polymers and Rubber Products (P) Ltd., reported in 1990 (48) E.L.T. 294 (Tribunal) in this context. As regards waste of electric cables and wires, the learned Consultant submitted that the assessee appellant had been giving intimation of clearance of such wastes to the Department and they have been following the Board's instructions in respect of such goods from 28-2-1986 to the date of receipt of the impugned order but without supervision of Central Excise Officers. It was submitted that the facts that the goods so cleared, were only waste can be seen from the respective prices and the goods are sold on weight basis as submitted in the grounds of appeal by the assessee appellant. The learned Consultant argued that it has been well settled fact that waste scrap will not be excisable under the tariff unless specifically described therein. The learned Consultant relied upon the decision of the Delhi High Court in the case of Modi Rubber Limited, Modi Nagar, U.P. and Anr. v. U.O.I. and Ors. reported in 1987 (29) E.L.T. 502 (Delhi) which was followed by the Tribunal in the case of Collector of Central Excise, Bhubaneswar v. Aluminium Industries Ltd., reported in 1987 (31) E.L.T. 748 (Tribunal). He further relied upon a said order of the Tribunal in the case of RPG Telecom Ltd. v. Collector of Central Excise, Bangalore, reported in 1994 (3) R.L.T. 375 (CEGAT SRB).
4. Shri A.K. Singhal, the learned Departmental Representative contended that the order of the Collector (Appeals) is only one of remand and is not a final order. It is not a final order as regards the durability of goods in question. The learned Departmental Representative pointed out that Notification No.132/86 at Serial No. 6 covers PVC compound at nil rate of duty and does not cover the scrap thereof with which we are concerned in this appeal. The learned Departmental Representative also pointed out that the additional grounds that the assessee appellants are said to have submitted before the Collector (Appeals) do not seem to have been considered at all by the Collector (Appeals) nor have the appellants been able to produce any evidence of submission thereof before the Collector (Appeals) by way of acknowledgement from the Collector office. Besides, the authorities below have largely gone by the assessee appellants own acceptance of classification of these scraps of PVC compound under Heading 3915 Central Excise Tariff Act. The learned Departmental Representative drew the attention to the grounds of appeal of the department to say that short length of wires and cables by itself will not become unusable as such wires and cables because such short lengths also have certain uses such as switch board connections etc. He further referred to the grounds of appeal to say that the scrap of electric wires and cables would still be classifiable as scrap of metal classifiable under Tariff Item 26A, 26B, 27 and 27A depending upon metal of which such electric wires and cables were made. He further relied upon the HSN Explanatory Notes under Heading 85.44 to say that wires cut to length would also be covered by such heading.
5. The submissions made by both the sides have been carefully considered. Taking up first the issue whether waste and scrap of wires and cables is excisable, and if so, whether the articles are classifiable under sub-heading 8544.00 CETA, 1985, it is seen that this heading at the relevant time reads as follows:
"Insulated (including enamelled or anodised) wire, cable (including co-axial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fibre cables, made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors.
The assessee appellants have in their appeal memorandum, dated 12-7-1991 before Collector (Appeals) explained as follows under 'Grounds of Appeal':
"Cables are commonly defined as 'metallic conductors insulated with dielectric material'. The cables have to meet the technical parameters specified in the governing specifications. If the Cable do not meet the technical parameters, they cannot be marketed and in such circumstances there is no alternative but to scrap the cables. Moreover, there are laws prevailing preventing use of defective cables. The Indian Electricity Rules, 1956 prescribes the practices followed during procurement; installation and commissioning of the electrical systems which include cable. The cables have to be scrapped under the following situations :
(i) if they fail to meet the thickness of insulation;
(ii) if they fail in high voltage test;
(iii) when the insulation is eccentic;
(iv) when the surface is rough or there is porousity in the insulation;
(v) when there is variation in colour shade.
There are prescribed standards for length of the cables and it is always the endeavour of every manufacture to product cables as per these standards. However, production of short lengths is inevitable due to various factors like power failure, workmanship defect, changing of master batch colour, machinery breakdown, etc. The short lengths generated during the manufacture of cables are marketable as cable and not scrap. We have never contested about the dutiability of short lengths and have always cleared the same on payment of prescribed excise duty. These short lengths are not.to be confused with scrap of cables. The scrap of cables is unserviceable/defective pieces of cables. It is very often in the form of a mass of metal and insulating compound. The scrap is not marketable as cables. What is being classified by us as scrap is neither long length nor short length but tiny, rejected, assorted mixed scrap of cables scrap which cannot be called cable by any stretch of imagination."
Therefore, what is sought to be cleared as scrap is material in the nature of rejects unmarketable as wires and cables. Where marketable but short length cables have been generated during the manufacture, the appellants have submitted that they have never contested their dutiability which is a submission which remains unrebutted. This would answer the Department's contention that short length cables per se will not become scrap as such cables also have their uses. The fact that in the manufacture of wires and cables rejects do arise is recognised and provided for in the Department's instructions regarding accounting of manufactured electric wires & cables in the statutory R.G. 1 Account. It is stated in those instructions : "RG 1 stage for electric wires & cables should be when they are reeled or rolled on drums, etc. and are disconnected from the machine. Their production should be accounted for in RG 1 at this stage. If they are not packed and transferred to store-room, their stock should be shown in column 15 of RG 1, i.e. goods in finishing room. In column 17 of RG 1 Register (rernarks column), the manufacturer should make an appropriate entry whenever the goods are required to be taken out for inspection AS ALSO THE QUANTUM OF REJECTS OBTAINED DURING THE DAY. After they are tested, packed and labelled, they should be transferred to store-room and accounted for column 16 of RG 1 Register. Remission of duty on rejects should be granted in accordance with the provisions of Rule 49 of the Central Excise Rules, as and when the rejects are destroyed and suitable debit can be made from the closing balance shown in RG 1 (C.B.E. & C. F. NO. 261 / 33B/1/81CX 6, dated 22-3-1982 and 3-9-1982. It is, further, observed from the opening para of Board's Circular of 6-7-1964 that it also proceeds on the premises that no duty is to be collected on unmarketable scraps of electric wires and cables and proceeds to prescribe the method of conversion of such wires into scrap. Collector (Appeals) is right in holding that these instructions are not Tariff related. It is in this context that the assessee appellants' reliance on the Delhi High Court decision in the case of Modi Rubber v. U.O.l. -1987 (29) E.L.T. 502 assumes relevance. The Tribunal in its decision in the case of C.C.E. v. Aluminium Industries 1987 (31) E.L.T. 748 had followed that decision. The Aluminium Industries case also was one in which the Department found that wires and cables was the intended manufacture, but at times, in the process of such manufacturing, some portion comes out defective and damaged which is unfit to be used a goods as perfect material and cannot be used as electric cables and wires. These were sought to be classified as goods not elsewhere specified in the Tariff under Item 68 C.E.T. The Tribunal observed as follows in para 5 of its decision to say how scrap is not goods :
"Scrap is not a goods that the factory set out to produce. We can even say that the scraps arose in spite of the factory's efforts to prevent their appearance because they represent a loss to the factory as rejects incapable of fetching the price of the prime products. When they do sell the scrap, it is at a fraction of the price of the prime goods. This led the Assistant Collector into seeing in the scraps a finished product with a new character and new name and new use. Scraps have no character nor do they have a name unless the word 'scrap' is a name; but I hold differently. Scrap is a 'name' that is not much used in central excise assessment; it applies to copper aluminium, iron, plastic, paper; it is no name to assess a product by; waste, scraps and rejects are not names of goods but names of non-goods, materials that could have been but did not become prime goods."
6. The Tribunal, thereafter, considered the Supreme Court decision in the case of Khandelwal Metal & Engg. Works v. U.O.I. -1985 (20) E.L.T. 222 and noted that the Supreme Court said that the production of waste and scrap was a necessary incident of the manufacturing process. Following then the ratio of Delhi High Court's decision in the Modi Rubber case (supra), the Tribunal held as follows in para 15 of its order to say that waste or scrap will not be dutiable unless specifically covered by the entry in the Tariff Schedule :
"In 1987 (29) E.L.T. 502 (Del.) (Civil Writ Petition No. 214/1982, decided on 8-12-1986) re : Modi Rubber Limited, Modi Nagar v. P and Anr. v. U.O.I. and Ors., the High Court at New Delhi dealt with just this problem. The waste and scrap of rubber tyre products were assessed by the department under Item 68. The court noticed that item 15A had specific heads for waste and scrap, and Item 18 for non-cellulosic waste; but item 16 for Tyres had none. The court observed that when the legislature wanted to cover waste or scrap arising in manufacture, it has been specifically provided in the tariff items. After a thorough analysis, the court ruled in para 16 that waste and scrap obtained in the course of manufacture are not goods, and that there was no event of manufacture of waste or scrap."
In the result, it is held that waste and scrap of wires and cables are not excisable goods and the question of their classification under CETA, 1985 does not arise. So far as the satisfaction of the officers as to past clearances of the materials as scrap, the appellants in this appeal have submitted that they can produce documentary evidence to support their claim and that they will be in a position to satisfy Central Excise Officers on this aspect with reference to the description in the invoices, the price fetched, and the mode of sale of the material which was on weight basis. It would appear that usable wires and cables are sold in length, This aspect may also have to be considered with the submission that under the Indian Electricity Act and the Rules made thereunder, it is an offence to sell wires with improper insulation, voltage, etc. They have, further, submitted that the percentage of total production of cables whether before 1-3-1986 or on and after that date would more or less remain the same. Therefore, it is directed that in respect of past clearances of such scrap where it was without excise presence such collateral documentary evidence can be taken as a working formula by the Department.
7. On the next question of excisability of scrap of PVC compound, it is seen that the Show Cause Notice, dated 29-7-1988 was issued relating to the Classification List No. 6/86, dated 8-10-1986 submitted by the assessee-appel-lants in which they had claimed classification of scrap PVC compound under heading 3904.00 Central Excise Tariff Act and it was proposed in the Show Cause Notice to classify it under heading 3915.00 and applying Notification No.132/86. The appellants' reply to Show Cause Notice on this was, "As regards scrap of PVC compound, we have been paying duty under heading 3915.00 at 40% ad valorem and we have no dispute in this regard." The Assistant Collector in his adjudication order, thereupon, held "Regarding scrap of PVC compound, they have accepted the classification of the product under heading No. 3915.00 with the rate of duty at 40% ad valorem. Hence the approval to the above classification and rate of duty accorded in the earlier classification lists stands continued." In their appeal memorandum before Collector (Appeals), dated 12-7-1991, they had challenged only exigibility and classification of scrap of electric wires and cables under Heading 85.44 CETA, 1985, and the appeal memorandum was totally silent on the classification of scrap of PVC compound. The Collector (Appeals) on this aspect has observed, "In so far as the scrap of PVC compound is concerned the same is classifiable under heading 3915 and liable to duty as per the notification 132/86." A perusal of the Collector (Appeals) order indicates that apparently, the Collector (Appeals) did not have before him detailed submissions on this aspect as is evident from the total absence of any reference in his order to any arguments relating to the dispute regarding liability to duty of scrap of PVC compound, which, again, accords with their appeal memorandum, dated 12-7-1991 which, as we have seen, was confined only to the other issue regarding scrap of electric wires and cables. However, in their present appeal before the Tribunal, the assessee- appellants have submitted, as was reiterated by the ld. Consultant on their behalf, that before the Collector (Appeals) they filed an amendment to their appeal adding fresh grounds of appeal to claim that scrap PVC compound though excisable under Heading 39.15 is subject to nil rate of duty under Notification 53/88. The appellants have contended that the Collector (Appeals) went wrong in that while upholding classification under Heading 39.15 in respect of scrap of PVC compound he had at the same time erroneously held that the lower rate under Notification 132/86 was applicable instead of nil duty exemption under Notification 53/88. The appellants contend and as also argued before us by the ld. Consultant, that scrap of PVC compound was subject to nil rate of duty vide Sr. No. 1 of Table to Notification 222/86, dated 3-4-1986 and thereafter under Sr. No. 24 of Table to Notification 53/88, dated 1-3-1988 as the appellants satisfied the identical condition for exemption under these notifications in as much as the said scrap had arisen in the assessee-appellants' factory in relation to the manufacture of electric cables falling under Chapter 85 CETA, 1985 on which duty has been paid by the appellants. Ld. D.R. had pointed out that there is nothing on record to show that the fresh grounds of appeal had in fact been taken on record by the Collector (Appeals). We also find that the copy of the amendment to appeal in the paper book bears no date and the appellants were not able to produce any acknowledgement thereof except that the learned Consultant submitted that it was handed over to Collector (Appeals) during personal hearing. If that be so, it is not clear as to how there is no reference at all in the impugned order to any of the submissions in the appellants amended appeal memo. In these circumstances, we conclude as follows :-
The scrap of PVC compound is covered under Heading 39.15 which covers "waste, parings and scrap of plastics". The same arguments and ratio of case law by which it is found that scrap as wires and cables is not excisable earlier in this order, would go to support the conclusion; that scrap of PVC compound is exigible.
It is internationally traded as is evident from similar heading in Chapter 39 of HSN Explanatory Notes. The assessee-appellants have also not disputed the exigibility and classification of the goods. The question is of eligibility to exemption. The lower authorities have granted exemption under Notification No. 132/86 against Sr. No. 39 of the Table to that notification which reads as follows :-
"39. 39.01 All goods other than 40% to polyurethanes falling under ad valorem."
39.15 sub-heading No, 3909.60 The assessee-appellants claim that their fresh ground of appeal before Collector (Appeals) was for nil duty exemption under Notification 53/88. This notification, we find is issued IN SUPERSESSION OF NOTIFICATION 132/86. Serial No. 24 to the Table to the notification reads as under :
"24. 39.15 Waste, parings Nil If such waste, parings and scrap of and scrap, of plastics, arise from goods, falling plastics under Chapter 39 or any other Cha-
pter of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), on which the duty of excise leviable thereon under the Central Excises & Salt Act, 1944 (1 of 1944) or the additional duty leviable thereon under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as the case may be has already been paid."
It is, however, noted that Sr. No. 42 to the Table of Notification 53/88 also covers Headings 39.01 to 39.15 at the rate of 40% as did Sr. No. 39 of Notification 132/86 and is worded as follows :
"42. 39.01 to All goods, other than polyurethanes 40% 39.15 falling under sub-heading No. 3909.60, ad valorem"
waste, parings and scrap of flexible polyurethane foam falling under Heading No. 39.15 and polyvinyl chloride of paste grade or battery grade falling under Heading No. 39.04 A reading of the entries in both the notification makes it clear that it was only under the later Notification 53/88, which superseded the earlier notification, that conditional full exemption was granted to scrap of plastics by carving out a separate entry in the Table to the Notification for such plastics falling under Heading 39.15. It is to be noted that the entry covering Headings 39.01 to 39.15 giving lower exemption still continued under Notification 53/88, but scrap of plastics falling under Heading 39.15 was excluded therefrom, and specifically provided elsewhere in the notification for full exemption. Reading these two notifications together it follows that scrap of PVC compound became eligible to full duty exemption only with the issue of Notification 53/83 subject to the condition prescribed therein. It is this notification which has been claimed by the assessee-appellants in the fresh ground of appeal which they say they had filed before the Collector (Appeals). But in their appeal before the Tribunal, the assessee-appellants have made a further claim [not contained even in their amendment to their appeal memorandum before Collector (Appeals)] that scrap of PVC compound is eligible for full duty exemption under Notification 222/86, dated 3-4-1986 which is also subject to the same condition as in Notification 53/88. The condition is that the scrap should be shown to have arisen from goods falling under Chapter 39 or any other Chapter of CETA, 1985 on which Central excise duty or the additional duty of Customs (CVD) has already been paid. Whether the condition is satisfied or not would require factual verification and no such verified data is available before us and it may not be proper to go merely by the appellants assertion in the matter. In this context, one has to bear in mind the well-settled principle that exemption from duty is an exception and it is for the assessee who claims the exemption to establish that he fulfils the conditions therefor. What emerges, therefore, is that admittedly for the period 1-3-1986 to 2-4-1986 at any rate only notification which covered scrap PVC compound was Notification 132/86 and, therefore, for this period exemption under this notification has rightly been extended by the lower authorities to the assessee. The assessee's latter claim said to have been made before Collector (Appeals), for exemption under Notification 53/88, and now, before the Tribunal, for exemption under Notification 222/86, have not been considered and pronounced upon by the lower authorities. This is necessary because the exemption under the two notifications is subject to the same condition and it has to be factually established that the condition is fulfilled. Therefore, it will be more appropriate for the assessee-appellants to be given an opportunity to so establish their claim for the exemption with satisfactory evidence, and, accordingly, the case on the aspect of the extent of exemption to be extended to scrap PVC compound is remanded to the jurisdictional Assistant Collector of Central Excise, who may give his findings thereon in accordance with law and after hearing the assessee-appellants in the matter. In so far as the appeal by the appellant Collector is concerned, as already discussed above, we see no reason to interefere with the findings in the impugned order of the Collector (Appeals) whose order on this aspect holding that waste and scrap of wires and cables is not excisable goods is upheld on the terms set out above. The two appeals are disposed of accordingly.