JUDGMENT : Mr. Ashok Bhan, J These are the two batches of the statutory appeals filed under Section 35-L(b) of the Central Excise Act, 1944 (for short "the Act"). The first batch a of appeals being CAs Nos. 1322-30 of 2001 impugns Final Orders Nos. 939-47 of 2000-B dated 16-6-2000 in Appeals Nos. E/455 of 1994-B, E/2194 of 1994-B, 1507 of 1996-B, 1246 of 1996-B, 1247 of 1996-B, 676 of 1996-B, 1281 of 1996-B, 1266 of 1997-B and 1697 of 1996-B passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short "the Tribunal") wherein the issue of classification of iron and steel products, namely, side slittings, cuttings, roughly shaped pieces and trimmings under the Schedule to the Central Excise Tariff Act has been decided against the Revenue, whereas the second set of appeals being CAs Nos. 4371-72 of 2003 impugns Final Orders Nos. 420-21 passed by the Tribunal dated 11-9-2002 in Appeals Nos. 1578-79 of 2002-B for a later period. The Tribunal following its earlier order dated 16-6-2000 in the first batch of appeals, has rejected these appeals. 2. The point involved in these two sets of appeals being the same, are being disposed of by a common order, as had been done by the Tribunal. For the sake of convenience, the appellant and the respondent are hereinafter referred to as "the Revenue" and "the assessee" respectively. The instant appeals pertain to the correct classification of side offcuts of HR coils which the assessee sought to classify as "waste and scrap" under Tariff Entry 72.04 while the Revenue sought their classification as "flat-rolled products" under Tariff Entries 72.08, 72.09 and 72.11. 3. The assessee was engaged in the manufacture of flat-rolled products (cold-rolled) of non-alloy steel out of the duty-paid HR/CR strips in coil form. The assessee filed its classification list effective from 15-3-1990 seeking classification of the flat-rolled products (cold-rolled products) attracting duty @ Rs. 10,000/- per MT and also sought for classification of waste and scrap of non-alloy steel inter alia, including side slitting/cutting of HR and CR. Such goods were declared by the assessee as waste and scrap and as not usable as such, because of breakage, cutting up, ware and other reasons. The assessee had cleared the same at payment of duty at a lower rate by declaring them as re-melting scrap not usable as such. Classification list was approved on 15-10-1990. Such goods were declared by the assessee as waste and scrap and as not usable as such, because of breakage, cutting up, ware and other reasons. The assessee had cleared the same at payment of duty at a lower rate by declaring them as re-melting scrap not usable as such. Classification list was approved on 15-10-1990. 4. After an investigation conducted by the officers of Preventive Branch of the Office of the Additional Collector, Central Excise, Ghaziabad, it was found that the assessee has been obtaining duty-paid HR coils/CR coils for manufacture of cold-rolled products in their factory. The input coils (HR/CR) so received by the assessee were of greater width generally ranging between 1040 and 1600 mm. But the assessee could cold roll in their factory coils up to width of 1275 mm. The input coils of greater width had therefore to be slitted into smaller width by the job workers employed by the assessee (i) so that the same could be fed into machines for cold rolling, (ii) the side slits were being obtained as a result of specific slitting instructions keeping in view their intended use. 5. It was found that the goods being assessed to duty by the assessee as waste and scrap included products such as side slitting or HR coil, CK coil, end cuttings of HR coils and CR coils and roughly-shaped CR sheets which were not in the form of re-melting scrap and could be used as such for other purposes. Therefore, between the period September 1991 and March 1994, as many as thirteen show-cause notices were issued to M/s. Jawahar Metal Industries Ltd. (now known as Bhushan Steels & Strips Ltd.), the assessee herein, demanding differential duty totalling Rs. 32,16,525.72, on all the side trimmings with a width of 10 mm, proposing their classification as flat-rolled products under Heading 72.11. 6. The Assistant Commissioner, who is the adjudicating authority, confirmed the demand worth Rs. 11,52,254.40 only and dropped the rest of the demand holding the goods i.e. side trimmings as waste and scrap. 32,16,525.72, on all the side trimmings with a width of 10 mm, proposing their classification as flat-rolled products under Heading 72.11. 6. The Assistant Commissioner, who is the adjudicating authority, confirmed the demand worth Rs. 11,52,254.40 only and dropped the rest of the demand holding the goods i.e. side trimmings as waste and scrap. The contention of the Revenue that trimmings between 10 mm and 45 mm should be held as usable and subjected to higher rate of duty and only trimmings of 10 mm width or less could be held as waste, was rejected on the ground that the Revenue had not produced any evidence to show that the side trimmings having width of 45 mm were being put to reuse as such for some other purposes. The adjudicating authority recorded that, on the other hand, the assessee had proved that side trimmings were being used by re-melting. Other than the "trimmings" the Revenue's contentions were accepted and the demand confirmed. 7. Against the orders passed by the adjudicating authority, the assessee filed eight appeals before the Commissioner (Appeals) (in respect of side slittings, end cuttings and roughly-shaped pieces) while the Revenue filed three appeals (regarding trimmings). The Commissioner (Appeals) confirmed the order of the adjudicating authority and dismissed the appeals on both sides. Aggrieved against the order of the Commissioner (Appeals), both the assessee and the Revenue filed appeals. 8. The assessee filed eight appeals whereas the Revenue filed three appeals before the Tribunal. Nine appeals had been disposed of, as indicated in the foregoing paragraphs, by the order dated 16-6-2000 and two appeals were dismissed by the order dated 11-9-2002. The appeals filed by the Revenue before the Tribunal have given rise to three appeals being CAs Nos. 1330 of 2001 and 4371-72 of 2003. 9. Counsel appearing for the Revenue fairly accepts the decision of the Tribunal and the authorities below and concedes that he cannot take the matter further in appeals, CAs Nos. 1330 of 2001 and 4371-72 of 2003. The same are dismissed. 10. While the assessee's case before the Tribunal as well as the authorities below was that the products like slittings, end cuttings, trimmings, etc. 1330 of 2001 and 4371-72 of 2003. The same are dismissed. 10. While the assessee's case before the Tribunal as well as the authorities below was that the products like slittings, end cuttings, trimmings, etc. obtained by the assessee were classifiable as "waste and scrap" of iron and steel falling under Heading 72.04 of the Central Excise Tariff Act, the case of the Revenue was that the slittings, end cuttings, roughly-shaped pieces and trimmings were classifiable under Tariff Headings 72.08, 72.09 and 72.11. 11. The relevant headings from the Tariff Act are extracted for reference: "Heading No. Sub-Heading No. Description of goods Rate of duty. (1) (2) (3) (4). 72.04 Ferrous waste and scrap, re-melting scrap ingots of iron or steel 72.08 - Of iron 7204.20 - Of stainless steel 7204.30 - Of other alloy steel 7204.90 - Other 72.08 . - Flat-rolled products of iron or non- alloy steel, of a width of 600 mm or more, hot-rolled, not clad, plated or coated 7208.11 - Exceeding 5 mm in thickness 7208.19 - Other - .Sheets 7208.21 - Exceeding 5 mm in thickness 7208.29 - Other - Strips: 7208.31 - Exceeding 5 mm in thickness 7208.39 - Other 7208.40 - Skelp Rs. 1200/- per tonne. - Other fiat products: 7208.91 - Exceeding 5 mm in thickness 7208.99 - Other 72.09 .Flat-rolled products of iron or non-alloy steel, of a width of 600 mm or more, cold-rolled (cold-reduced), not clad, plated or coated 7209.10 - Plates 7209.20 - Sheets 7209.30 - Strips 7209.90 - Other 72.11 Flat-rolled products of iron or non-alloy steel, of a width of less than 600 mm, not clad, plated or coated - Flats 7211.11 - Exceeding 5 mm in thickness 7211.19 - Other - Universal plates 7211.21 - Exceeding 5 mm in thickness 7211.29 - Other 7211.30 - Hoops - Sheets: 7211.41 - Cold-rolled (cold-reduced) Rs. 1500 per tonne. 7211.42 - Hot-rolled, exceeding 5 mm in thickness Rs. 800/- per tonne. 7211.49 - Other Rs. 1200/- per tonne. - Strips 7211.51 - Cold-rolled (cold-reduced) Rs. 1500/- per tonne. 7211.52 - Hot-rolled, exceeding 5 mm in thickness Rs. 800/- per tonne. 7211.59 - Other Rs. 1200/- per tonne. 7211.60 - Skelp Rs. 1200/- per tonne. - Other flat products: 7211.91 - Cold-rolled (cold-reduced) Rs. 1500/- per tonne. 7211.92 - Hot-rolled, exceeding 5 mm in thickness Rs. 800/- per tonne. 7211.99 - Other Rs. 1200/- per tonne. 1500/- per tonne. 7211.52 - Hot-rolled, exceeding 5 mm in thickness Rs. 800/- per tonne. 7211.59 - Other Rs. 1200/- per tonne. 7211.60 - Skelp Rs. 1200/- per tonne. - Other flat products: 7211.91 - Cold-rolled (cold-reduced) Rs. 1500/- per tonne. 7211.92 - Hot-rolled, exceeding 5 mm in thickness Rs. 800/- per tonne. 7211.99 - Other Rs. 1200/- per tonne. 72.16 Angles, shapes and sections of iron or non-alloy steel 7216.10 - Not further worked than hot-rolled, hot-drawn or extruded tonne Rs. 800/- per tonne. 7216.20 - Not further worked than cold-formed or cold-finished tonne Rs. 800 per tonne. 7216.30 - Plated or coated with zinc Rs. 1800/- per tonne. 7216.40 - Plated or coated with other base metals Rs. 1800/- per tonne. 7216.50 - Slotted angles and slotted channels 15% Rs. 1200/- per tonne. 7216.60 - Forged Rs. 1200/- per tonne. 7216.90 - Other Rs. 800/- per tonne" 12. The Tribunal neither accepted the contention of the counsel for the assessee to place the items in question under Heading 72.04 as "waste and d scrap" nor did it accept the contention raised by the Revenue that the disputed items were liable to fall under Headings 72.08, 72.09 and 72.11. Following the judgment of this Court in L.M.L. Ltd v. CCE, (1997) 7 SCC 588 the Tribunal held that in view of the definition of "waste and scrap" given in Chapter 72 of the Tariff Act, the items in dispute would not fall under Heading 72.04 as the same are "usable as such"; that if iron and steel items were fit for any purpose other than recovery of metal or for use in the manufacture of chemicals, they could not be termed to be waste and scrap; that only the metals or metal goods definitely not usable as such, could fall under heading "waste and scrap" under Heading 72.04. It was further held that though offcuts which are usable would be liable for payment of duty but the same would be under Heading 72.16, as had been held in L.M.L. Ltd. case, (1997) 7 SCC 588 (72.16 is equivalent to 72.10-L.M.L. Ltd case, (1997) 7 SCC 588 ) and not under Headings 72.08, 72.09 and 72.11, as had been contended by the Revenue. The assessee has accepted the findings recorded by the Tribunal and has not come up in appeal. 13. Counsel for the parties have been heard at length. The assessee has accepted the findings recorded by the Tribunal and has not come up in appeal. 13. Counsel for the parties have been heard at length. 14. In L.M.L. Ltd. case (1997) 7 SCC 588 this Court held that cut sheets which are used in the manufacture of ancillary items cannot be regarded as waste and scrap as the same were used by the assessee for producing some other items, as in the present case. It was observed: (SCC p. 591, para 10) "10. It is quite evident that those portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as waste and scrap. As per the aforesaid definition it is only that 'waste and scrap' of iron or steel which is fit only for the recovery of metal or for use in a manufacture of chemicals which could fall under that category. These portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as having been used for recovery of metal or for use in the manufacture of chemicals. This being so, those portions of cut sheets which are not used for recovery of metal or in the manufacture of chemicals cannot be cleared under Tariff Item 72.03. At the same time b the definition of the word 'sheet' as contained in Chapter 72 would clearly indicate that the cut sheets which are used by the appellant do not fall under that category. The definition of sheet, inter alia, states that it has to be a hot or cold-rolled flat product, rolled in rectangular section of thickness below 5 millimetres and supplied in straight lengths. It was not disputed that the offcuts which remain after the parts of the scooter had been manufactured by using the steel sheets no longer retain rectangular shapes. These offcuts are of different shapes and sizes and, in our opinion, they would clearly fall under Tariff Entry 72.10." (emphasis in original) It was held in the above case that the offcuts of steel sheets being of different shapes and sizes would fall under Tariff Entry 72.10 which after restructuring d of the tariff have become equivalent to Entry 72.16. 15. We agree with the view taken by the Tribunal. 15. We agree with the view taken by the Tribunal. HSN Explanatory Notes in Chapter 72 provide that "waste and scrap" is generally used for the recovery of metal by re-melting or for the manufacture of chemicals. It further provides that Heading 72.04 "excludes articles which, with or without repair or renovation, can be reused for their former purposes or can be adapted for other uses; it also excludes articles which can be refashioned into other goods without first being recovered as metal". 16. It is apparent from the reading of HSN Explanatory Notes that if the goods can be reused without first being melted, are excluded from the purview of Heading 72.04. They would also not fall under Tariff Entries 72.08, 72.09 and 72.11 as the offcuts are of different shapes and sizes and would not fall under these tariff items. Thus, the Tribunal has, and in our view, rightly held that the side slittings, end cuttings and others will be classifiable under Heading 72.16 of the Schedule to the Tariff Act being offcuts of different shapes and sizes. The finding recorded by the Tribunal that "no penalty is imposable in the present matters" having not been challenged in these appeals, is confirmed. 17. Insofar as the refund of duty payable as a consequence of this order is concerned, it may be observed that the same shall be disposed of in terms of a Constitution Bench judgment of this Court in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 . 18. Accordingly, the appeals stand allowed to the extent indicated above. 19. No costs. Appeal partly allowed.