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Glasfibro Products Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1984)(17)ELT541TriDel
AppellantGlasfibro Products
RespondentCollector of Central Excise
Excerpt:
.....of the assessee and the government".on this reasoning, he concluded that the earlier order of the assistant collector dated 15-10-1975 allowing the classification list, had not acquired the status of finality and should be deemed to have been under review and consequently rejected the appeal.4. during the hearing before us on 11-4-1984, the following salient points were made by the learned counsel for the appellants - (i) the action of the supdt. in issuing the show cause notice on 10-9-1976 in spite of the assistant collecter's order of 15-10-1975 and the assistant collector's approval of the classification list, and the subsequent proceedings were illegal in the absence of properly constituted proceedings seeking to review the assistant collector's orders. (ii) the roofing sheets were.....
Judgment:
1. The captioned appeal was initially filed as a Revision Application before the Central Government "which, under Section 35-P of the Central Excises and Salt Act, 1944, has come as transferred proceedings to this Tribunal, for disposal as if it were an appeal filed before it.

2. The Appellants are manufacturers of Fibre glass reinforced plastic (F.R.P.) corrugated and semi-corrugated roofing sheets. By a letter dated 9-7-1975, they had claimed exemption from duty in terms of Central Excise Notification No. 68/71, dated 29-5-1971 on the aforesaid goods which till then were charged to duty as rigid plastic sheets under Item No. 15A(2)of the Central Excise Tariff (CET). The Asstt.

Collector by his letter dated 15-10-1975, acceded to the appellants' request on the ground that F.R.P. roofing sheets had got profile shapes and could not be re-shaped and were directly moulded from resins.

However, on 30-1-1976, the Supdt. of Central Excise informed the appellants that the question of exemption of F.R.P. roofing sheets was under review by the Government of India. This was reiterated on 8-2-1976 when it was also said that the Appellate Collector's order on a similar issue in the case of another assessee was under review. By these letters, the appellant was directed to observe all excise formalities, maintain all statutory records and was given the option to avail themselves of provisional assessment. It appears, however, that the appellants failed to comply with these directions. Thereupon, a show cause notice was issued by the Supdt. alleging contravention of Rules 173-C, 173-F, 173-G, 52A and 53 of the Central Excise Rules, 1944. They were also asked to show cause why duty amounting to Rs. 39,470.20 should not be recovered from them for the periods 6-9-1975 to 15-3-1976 and 16-3-1976 to 31-8-1976 and why a penalty should not be imposed oh them under Rule 173-Q. The appellants contested the notice and contended that the F.R.P. roofing sheets were moulded articles, having profiles and since they could not be re-shaped, they were only articles of plastics and not sheets liable to duty in terms of Item 15A(2), CET read with Notification 68/71. The Asstt. Collector did not accept these contentions but held that they were rigid plastic sheets liable to duty "in respect of clearances effected from 6-9-75 to 31-8-76, and clearances of the product in question effected thereafter till to date, will also be liable to duty at appropriate rate and assessee shall pay the same on demand being raised by Range Supdt. for subsequent period and same shall be deemed to have been confirmed by issue of this order." He also confirmed under Rule 10A the aforesaid demand for Rs. 39,470.20 for the period from 6-9-1975 to 31-8-1976. He also held the alleged contraventions of Central Excise Rules as having been established and imposed a penalty of Rs. 25 on the appellants under Rule 173-Q.3. The matter was pursued in appeal by the appellants. In his order of 20-2-1979, the Appellate Collector observed that "in matters of classification, if a similar issue is under the consideration by the Government, it is not necessary that each individual case should be brought to the notice of the Government for review. It would only be unnecessary work both on the part of the assessee and the Government".

On this reasoning, he concluded that the earlier order of the Assistant Collector dated 15-10-1975 allowing the classification list, had not acquired the status of finality and should be deemed to have been under review and consequently rejected the appeal.

4. During the hearing before us on 11-4-1984, the following salient points were made by the learned Counsel for the appellants - (i) The action of the Supdt. in issuing the show cause notice on 10-9-1976 in spite of the Assistant Collecter's order of 15-10-1975 and the Assistant Collector's approval of the classification list, and the subsequent proceedings were illegal in the absence of properly constituted proceedings seeking to review the Assistant Collector's orders.

(ii) The roofing sheets were final products as distinct from sheets which manufactured by lamination or extrusion process. Ordinary sheets are only semi-manufactures or raw materials for making other plastic products.

(iii) With the introduction of Item 22F from 16-3-1976 in the tariff, the roofing sheets would fall under the said item since the appellants were manufacturing the roofing sheets without the aid of power.

(iv) It was incorrect to say that review proceedings were not necessary in each case or that the decision in the case of one assessee would apply automatically to another assessee without corresponding review proceedings.

(v) The appellants are not aware of the so-called decision of the Government of India or its rationale. They did not know the basis, the arguments and the submissions. In any event, such a decision would not be binding on the appellants.

(vi) Bombay Collectorate Trade Notice dated 26-9-1981 clarified that glass fibre reinforced plastic articles manufactured from resins and/or plastic materials falling under Item 15A(1) are eligible for exemption under Notification No. 68/71.

5. The learned SDR, in her submissions, agreed that there was a factual error in the Appellate Collector's order where it says that the appellants did not file a revised classification list after the Assistant Collector's order. She further agreed that, in the circumstances of the case, there was no question of resorting to provisional assessment.

6. We have considered the submissions of both sides. In our view, the proceedings before the lower authorities were riddled with and vitiated by irregularities. By their letter dated 9-7-1975, the appellants had set out the process of manufacture and claimed exemption under Notification 68/71 under Item 15A(2), GET. By his letter dated 15-10-1975, the Assistant Collector approved the claim in unequivocal terms reading thus : "Under the circumstances explained by you in above referred letter and the decision taken by Appellate Collr. in similar issue, I hereby order that F.R.P. corrugated Roofings manufactured by you are exempted from payment of duty under Government of India's Notification No. 68/71, dated 29-5-71 on the grounds that they are directly moulded from the resins, and have got profiles and further that they (products) cannot be reshaped. You are therefore advised to file revised classification list for the said products." In accordance with the Assistant Collector's direction, the appellants filed revised classification list on 21-10-1975. This was duly approved by the Assistant Collector on 13-11-1975. This decision was not sought to be reviewed by the competent authority. In the circumstances, the Supdt.'s show cause notice dated 10-9-1976 was incompetent. In the face of the approval of the classification list, the allegations contained in the show cause notice were devoid of any basis. The show cause notice talks of the period 6-9-1975 to 31-8-1976, during which the alleged contraventions of Central Excise Rules took place and duty was not paid. However, the Assistant Collector's adjudication order of 1-9-1977 proceeds as if the Assistant Collector's order of approval of the classification list was under review because a similar decision in respect of another assessee was under review by the Government.

Evidently, each decision has to be separately reviewed and review proceedings in one assessee's case cannot be the basis on which the decision in another assessee's case can be modified. Quite apart from this, the Government's Order-in-review does not appear to have been made available to the appellants nor, for that matter, to us. How Were the appellants to know the basis for the Government's Order-in*review, the submissions put forth Though the show cause notice talked of the period 6-9-1975 to 31-8-1976, the Asstt. Collector passed order also in respect of the clearances effected after 31-8-1976 till "to date" (i.e.

1-9-1977). The order goes on to say that "the assessee shall pay the same (duty) on demand being raised by the Range Supdt. for subsequent period and the same shall be deemed to have been confirmed by the issue of this order". In other words, by this order, the Assistant Collector confirmed the demands which were yet to be raised as on the date of passing his order. We do not have to say anything more to show how the Assistant Collector's order suffered from irregularities and illegalities. The Appellate Collector's order also suffers from the same defects. We are surprised over the facile manner in which the lower authorities have gone about their quasi-judicial functions.

7. In the result, the impugned order is set aside and the appeal allowed. Consequential benefit shall be granted to the appellants within 3 months from the date of communication of this order. In the view of the matter which we have taken, we do not it necessary to deal with the other contentions of the appellants.


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