1. These three appeals arise out of the Order-in-Revision No. 23-R/84, dated 16-4-1984 passed by the Central Board of Excise and Customs under Section 35A, Central Excises and Salt Act. By that order, the Board set aside the Order-in-Original No. V. 52(30) 3/74-CXI, dated 7/10-11-1975 of the Assistant Collector of Central Excise, Bhavnagar, in which he had held that the hub-bolts manufactured by the appellants were not excisable under item 52 of the Central Excise Tariff Schedule. The Board further set aside three refund orders, all dated 3-3-1976, passed by the said Assistant Collector in pursuance of his first order, and pertaining to duty paid during different periods.
2. At the start of the hearing, the Bench pointed out to Shri Jhunjhunwala, the learned Advocate for the appellants, that since there were in effect four orders of the Board, there should have been four (and not three) appeals to the Tribunal. Shri Jhunjhunwala undertook to file one more appeal, but requested that in the meantime the hearing might be proceeded with. We, accordingly, proceeded on the understanding that the present hearing would not cover the appellants' case relating to duty of Rs. 13,271.82 paid during the period 6-11-1975 to 8-11-1975, which would be covered by the further appeal to be filed.
3. Shri Jhunjhunwala raised a preliminary point that the order of the Board in this case was without jurisdiction. He pointed out that the show cause notice initiating the proceedings was issued on 1-11-1976, whereas the Board's order was passed on 16-4-1984. In the meantime, that is with effect from 11-10-1982, Section 35A, Central Excises and Salt Act, under which the show cause notice had been issued, was superseded and the Board thereafter had no powers of revision.
Therefore on 16-4-1984 when the Board's order was passed the Board had no power to pass such an order and it was, accordingly, without jurisdiction, since the proceedings must be deemed to have lapsed. In this connection Shri Jhunjhunwala referred to the judgment of the Allahabad High Court in the case of Ajanta Paper Products v. Collector of Central Excise, Kanpur 4. The Bench drew the attention of Shri Jhunjhunwala to the provisions of Sub-section (3) of Section 35P, Central Excises and Salt Act. Shri Jhunjhunwala submitted that Section 35P related only to transfer of pending proceedings to the Tribunal and did not authorise the continuance of proceedings by the Board.
5. Shri Jhunjhunwala also made a passing reference to the fact that Rule 11 of the Central Excise Rules had been rescinded and replaced by Section 11A of the Central Excises and Salt Act, but did not pursue this point, when it was observed that no reliance had been placed on Rule 11 in the cases before us.
6. Shri Jhunjhunwala then turned to the merits of the case, which relates to the question whether the goods under consideration, known as "hub bolts", were classifiable under Item 52 of the Central Excise Tariff Schedule, covering "Bolts and Nuts, threaded or tapped, and screws ...", or under Item 34A ibid (which at the relevant time covered "Parts and accessories of motor vehicles not otherwise specified"). The Board held that the goods were classifiable under Item 52. The case of the appellants was that they were classifiable under Item 34A, read with exemption Notification No. 99/71, dated 29-5-1971, by virtue of which all goods classifiable under Item 34 A, except those listed in the notification were exempted from duty. Admittedly, hub-bolts were not among the articles listed in the notification and therefore, according to the appellants, they were entitled to exemption from duty.
7. Shri Jhunjhunwala took us through the appellants' reply dated 3-1-1977 to the show cause notice issued by the Board. He laid stress on the use of the goods, which has been explained in detail in paras 12 to 14 of the reply to the show cause notice, which are reproduced below :- "12. Now, reverting back to issue of classification of Hub-Bolts, we may kindly bring to your notice that Hub-Bolts as such, are more patently known as Wheel Mounting Pin. The said products are manufactured as per the specification of the manufacturers and are assigned special Part Numbers. The diagram of these Wheel Mounting Pins (Hub-Bolts) is enclosed (Ex, 'E' and 'F').
13. It is submitted that hub-bolt/wheel-mounting pin is a fixed part of the hub attached to the brake drum. The bolt or pin in question is pressed into position in the hub and it remains fixed there, so that it cannot be screwed out or removed from its position. Only the nut is lightened to the bolt/in after the wheel is mounted in position. This nut is also manufactured as per the specification to suit the threading of the bolt. It can be seen that in the rear axle assembly, the driving power is actually conveyed to the Wheels through the hub as a result of the position of the wheel mounting pin or hub-bolt.
14. As discussed above, this item is not capable of being used as general type of fastener but have a specific functional utility. We, therefore, feel that this item does not fall under Tariff Item 52.
The entire production of this item is supplied to the Original Equipment manufacturers as automobile parts and for replacement purpose. They are also not capable of being used in any other vehicle. In short, the production of this item is strictly as per the specifications and the drawings supplied by the Original Equipment manufacturers. Thus, the part numbers and special design takes it out of the general run of bolts and nuts and hence such item cannot be liable to assessment under Item 52 of the Central Excise Tariff." 8. Shri Jhunjhunwala then referred to the Tribunal's decision in the case of Sri Ramdas Motor Transport Ltd. v. Collector of Central Excise, Madras (1983 E.L.T. 2067) which had been decided against the assessees in that case. That case also related to the classification of "hub-bolts and nuts". However, the material period in that case was after 10-5-1979, whereas the present case pertained to the period prior to 10-5-1979. That date was significant because Item 34A earlier covered "All parts and accessories of Motor Vehicles not otherwise specified". However, by virtue of an amendment made through the Finance Act, 1979, Item 34A was amended so as to cover only 15 specific items.
This change became effective from 10-5-1979. It was the case of the appellants that prior to the amendment of the tariff item, it clearly covered the hub-bolts which are the subject matter of the present appeals, and that since hub-bolts were not among the excluded items enumerated in Notification No. 99/71-C.E., dated 29-5-1971, they were exempt from duty prior to 29-5-1971.
9. Since the Tribunal's decision in the Ramdas Motor Transport case was with reference to the period from 10-5-1979, it was the contention of Shri Jhunjhunwala that the adverse decision contained therein could not apply to the cases before us. He went further and argued that there were certain observations in the above order of the Tribunal which were actually in favour of the appellants so far as the period prior to 10-5-1979 was concerned. Thus, in para 17, the representative of the Department had been quoted as follows : - "Shri K.D. Tayal, S.D.R., while replying to the arguments of the learned counsel pointed out that the position which prevailed prior to the amendment of T.I. 34A, which was effective from 1-3-1979 (sic), was altogether different because at that time read with Notification No. 99/71, Item 34A, by itself covered all parts of motor vehicles : 'not otherwise specified'. In that context, it could be argued that hub-bolts and nuts may also fall under this description." "We have carefully examined all these aspects of the matter but we feel that the pica of the appellant that, no change can be considered to have taken place after amendment of T.I. 34A, does not impress because it is apparent that an entry which was previously N.O.S. has been now made very specific, and relatable only to specified part of motor vehicles. We find justification in the contention put forward by the learned S.D.R., namely that the contest now is between T.I. 52 which specifically covered bolts and nuts of every description as against the residuary or general entry represented by Item 68." "We are, therefore, of our firm view that after amendment in 1979, the position has changed materially and there was no bar in the way of departmental authorities to undertake reclassification, in face of the specific Tariff Item, covering bolts and nuts of every type and shape, namely, Entry 52, and examine the asscssee's claim for taking them under the residuary Item 68. The case thus falls within the situation as recognised by the decision of the Tribunal in Mukund Engineering case, as well as the basic authority of Delhi High Court in the J.K. Synthetics case, referred to above." "We, therefore, are of the considered view that the classification as now determined by the lower authorities as a sequel to the change of the tariff entry of the subject goods, holding hub-bolts and nuts as under T.I. 52 is fully justified. The appeal thus merits dismissal, and is dismissed accordingly." On the basis of these observations Shri Jhunjhunwala submitted that in the Ramdas Motor Transport case the Tribunal had clearly implied that prior to 10-5-1979 hub-bolts would have been classifiable under Item 34A, in which case they would have been exempted from duty.
10. Shri Jhunjhunwala also relied on para 21 of the above -order where it has been observed that the supposed engineering features of the goods in that case had not been explained, nor was there any evidence of technical literature to indicate any other special characteristics of those goods other than that of fasteners. However, the present case was quite different, because evidence was duly placed before the Assistant Collector and he had also visited the factory of the appellants and seen the working and use of the hub-bolts. He had then been fully satisfied about their nature and use. Accordingly, the case of the appellants deserved to be distinguished from that of Ramdas Motor Transport.
11. Shri Jhunjhunwala then referred, to the following observations in the Board's order under appeal :- "However, with due respect to the observation made by the Tribunal in the aforesaid judgment that there was a material change with the introduction of Finance Bill of 1979, the Board feels that in fact even prior to the introduction of Finance Bill of 1979, such hub-bolts were classifiable under Item No. 52 of the said Schedule because of the words "not elsewhere specified" used in Item No. 34A of the said Schedule. Perhaps the Tribunal was not dealing with the assessment of hub-bolts and nuts prior to the introduction of the Finance Bill of 1979." He submitted that the Board was wrong in taking the above view and should have followed the purport of the Board's observations in its order as construed by him.
12. Shri Jhunjhunwala also submitted that M/s. Gurmukh Singh and Sons, Ludhiana, had from 1972 (and up to .10-5-1979) been allowed the benefit of classification of their bolts and nuts under Item 34A, and clearance free of duty in terms of Notification No. 99/71. He submitted that it would be discriminatory if the appellants who were in the same line of business and were competitors of M/s. Gurmukh Singh and Sons, were subjected to duty.
13. Finally, Shri Jhunjhunwala submitted that since both the appellants and the Department were proceeding under a common mistake of law, no questions of limitation should be allowed to stand in the way of the appellants being given relief. (This had reference to a possible objection that the refund claims filed by the appellants and admitted by the Assistant Collector related to some payments of duty made beyond the period of limitation laid down in the Central Excise Rules).
14. Replying on behalf of the Department, Shri Tayal submitted that in terms of Sub-section (3) of Section 35P, Central Excises and Salt Act, it was very clear that the proceedings initiated by the Board under Section 35A ibid prior to amendment were to be continued as if that section had not been substituted. Accordingly, the Board was fully clothed with jurisdiction to continue the proceedings and pass the order under appeal.
15. Shri Tayal submitted that he too was relying on the Tribunal's order in the case of Shri Ramdas Motor Transport Ltd. In that case, which no doubt pertained to the period after 10-5-1979, the question was of the rival claims of Items 52 and 68. In that case the action of the Excise authorities, who had formerly allowed the goods exemption under Item 34A read with the notification thereunder, in seeking to reclassify the goods under Item 52 after the amendment of Item 34A, was challenged on the ground that there had been no change in Item 52 and therefore no justification for revising the classification. It was in this context that various references were made to the tariff change which took place in 1979. The thrust of. the argument was that the tariff change in 1979 justified the Central Excise authorities in re-examining and reviewing the classification earlier adopted. This would be very clear from para 21 of that order, which has been quoted earlier. According to him the tariff change in 1979 was relevant in that context and it was not necessary that the change should have had a direct bearing on the re-classification effected.
16. Shri Tayal submitted that the decision of the Bench was contained in para 21 of the order. The ratio of the decision was that the goods were basically and essentially fasteners. That ratio was equally applicable to the present case.
17. Shri Tayal also referred to para 23 of the above order, in which it was clearly stated that the Bench had taken into account the material placed before it including tariff advices, budget instructions, etc.
After examining als this material the Bench had, in para 25 of the order, held that the appellant had not established the basic requirement that the goods performed a function other than that of fasteners. In para 27 of the same order, the Bench had also observed that nothing turns on the fact that the hub-bolts and nuts in that case would be available only at the shop of an automobile dealer. The Bench had observed that such articles which are of a specialised nature and are supplementary to a particular machine are normally stocked by the dealer in the principal goods, but that would not make them "parts" of that machine.
18. Shri Tayal also drew our attention to the order of this Bench in an earliear case of the present appellants (Order No. 577/83-D, dated 15-9-1983). That case related to as many as 27 different items of "nuts and bolts" (though none was described as a hub-bolt). In that case the Bench, after having considered the nature of all the 27 articles, and having perused the catalogue of the appellants relating to these articles, had observed that all of them were described in the catalogue as "fasteners" and had held that all of them would fall under Item 52.
Although that matter pertained to the post-1979 period, the conclusions* reached therein pertaining to the factual position were equally applicable to the present case.
19. With reference to the argument of the appellants that the articles had the function of transmitting power, Shri Tayal pointed out that the appellants had sought to give them the alternative name of "wheel mounting pins". If this description was to be accepted, it would be seen that they were only used for mounting the wheel and there was no question of transmitting power. Shri Tayal submitted that the transmission of power, as ordinarily understood, would be through such mechanisms as axles and connecting rods and not bolts and nuts which are used only for holding articles firmly together.
20. Shri Tayal also referred to the Tribunal's decision in the case of Collector of Central Excise, Chandigarh v. Purewal and Associates Ltd. (Order No. 16/1984-D, dated 7-1-1984). He relied on para 34 of this order, which is reproduced below : - "We would not go so far as to say that the use of the article is entirely irrelevant, There could be extreme cases where an article looks like a screw, or has a thread like a screw but which it would be far-fetched to regard as a screw. There are many articles which are in the nature of component parts or accessories which are attached to the main article by a shank with a thread. A spark plug in an engine, the gear lever in a motor car and the pedal of a bicycle, are some examples. Merely because they are screwed into position by means of a thread, it would be far-fetched to treat them as screws. There could be less extreme examples where also the article possesses a thread but still cannot be regarded as a screw.
It is in this context that it can be said that the mere existence of threads would not render an article as a bolt, nut or screw, as has been stated in the Bombay trade notice dated 5-7-4 971, and we can agree with the statement in that trade notice up to this point.
There is also force in the latter part of this trade notice which indicates that Item 52 should be applied only to those articles which are known as bolts, nuts and screws in the market. But we think this trade notice goes wrong in implying that an article which is recognisable as a component part of an instrument, apparatus, etc., would not be a bolt, screw, etc. Such a proposition would involve ignoring the obvious fact that a bolt or screw in the ordinary sense can well be used as a component part of an instrument, apparatus, etc. Thus, Shri Mathur's argument that merely because the screws in question are known to be used as component parts of watches they are taken out of the purview of Item 52 is, in our opinion, misconceived." 21. Shri Tayal thereafter cited a Division Bench judgment of the Bombay High Court in the case of Simmonds Marshal Ltd. v. M.R. Baralikar, Assistant Collector of Central Excise, Ago, Pune II Division, Pune, and Ors. (1984 Vol. 2 E.C.C. page 42). That case related to the classification of goods described as "Nyloc Self Locking Nuts". It was clear from the judgment that those artificial were used in automobiles and that they had special qualities required for that use. That matter pertained to the period subsequent to 1-3-1975 (but prior to 10-5-1979) and the question there was whether classification should be under Item 52 or Item 68~ In para 4 of that judgment reference was made to the argument of the petitioners (in that case) that their product three to four times the price of an ordinary nut, was manufactured from speck " material and had special specifications and designs, was used by a separate class of consumers, and was inter alia used for locking and providing seal to any liquid entering a particular area, etc., and was not merely used for fastening as a nut is used. Evidence was produced to show that the nuts were special fasteners used as original equipment on critical applications in the automobile industry. It was also stressed that these nuts were ordinarily stocked in the auto spare parts market and were not sold in the hardware market where nuts were sold. The argument was also advanced in that case that there was hostile discrimination between the petitioners and two other concerns, namely M/s. Pioneer and M/s. Gurmukh Singh.
22. Shri Tayal pointed out that all these arguments had been rejected by the Hon'ble High Court, which had held that goods fell under Item 52. As regards various Trade Notices which were cited in support of the petitioners in that case, the Court had observed :- "It is also equally well-settled that if a controversy is raised, it is the function of the court to construe the entries and in reaching the correct meaning of the statutory provisions, opinion of the executive is hardly material. The court cannot abdicate in favour of such opinion." The Court had also referred to the special features of the goods in the case, and had held that these features did not prevent the articles from being classified as "nuts", as seen from the following quotation :- "We have gone through these documents as well as certificates. We have also carefully gone through the expert evidence as well as drawback scheme of the Government of India, the view expressed by I.S.I, and the evidence of traders and consumers and other reports.
From the various certificates issued in the name of the petitioners it is quite clear that the product of the petitioners, nylocs, are ordinarily stocked in the auto spare parts market as these nuts are used on special application on all types of vehicles. They are somewhat different to the ordinary nuts as they have nyloc collar and in view of their special characteristics, such as self-locking, sealing, etc., they are used where vibration is a major problem.
They are supplied against specific orders and they are not hardware items. Ordinary consumers of nuts do not purchase nyloc nuts because they are costlier than other types of standard nuts and are for specific use. These nyloc nuts are used by the consumers on critical applications which are subjected to stress and vibration where ordinary nuts are likely to work loose not having the locking action of the nyloc nut provided by the nylon ring. It appears from the certificate issued by the Industrial Fasteners Association of India as well as the All India Automobile and Ancillary Industries Association, that the nyloc self-locking nuts are special fasteners used as original equipment on critical applications in the automobile industry. However, one thing is clear that these nuts are manufactured out of metal and alloy and are used as fasteners. If the evidence produced by the petitioners and the department is read as a whole, without laying undue stress on an individual quality of the product, it is quite clear to us that nyloc nut is nothing but a self-locking nut ... It is the commodity as a whole which will have to be taken into consideration, while deciding the question as to whether it falls within a particular entry, and no undue stress can be laid on any isolated function or quality." 23. The High Court had also rejected the argument that the goods were not available in the ordinary hardware market, in the following terms : "On a comprehensive consideration of the material before us, there is no escape from the conclusion that nyloc nut is a nut, though it could be described as an improvised or special type of nut. It will make no difference whether it is readily available in the ordinary hardware market or is available only in automobile shops, it is costlier than an ordinary iron nut. It is quite clear that if this nut could not be used basically as a fastener, then all other additional advantages will have no meaning." 24. The High Court also rejected the argument of hostile discrimination vis-a-vis M/s. Pioneer or Gurmukh Singh. It was observed that those cases were decided on their own facts and no general rule of law was laid down in that behalf, and that a decision whether a particular article or commodity is covered by an item or entry in the schedule must obviously depend upon the facts and circumstances of each case.
25. In the end the High Court had held that in substance the goods under their consideration were a special kind of nut and nothing more and they had no hesitation in coming to the conclusion that they were covered by Item 52.
26. Shri Tayal, accordingly, submitted that we should follow the clear decision of the Bombay High Court on the identical issued and reject the appellants' contention.
27. Shri Tayal also referred to Shri Jhunjhunwala's argument that no question of limitation should be raised in this case, since it was claimed that both parties were under a common mistake of law. Shri Tayal submitted that in a large number of decisions the Tribunal had consistently taken the view that in such cases the limitation provided in the Customs Act or Central Excises and Salt Act was applicable. The decision of the Tribunal in the case of Miles India Ltd. (1983 E.L.T.1026) had also been upheld by the Supreme Court.
28. Shri Jhunjhunwala had no additional submissions to make in the light of Shri Tayal's arguments.
29. We have given our very careful consideration to the arguments advanced on both sides. The arguments of the learned advocate for the appellants could be summarised as follows :- (b) manufactured as per specifications; not general type of fastener, but having specific functional utility; (c) only used as motor vehicle parts and not available with hardware dealers; (d) evidence of engineering features produced and adjudicating officer satisfied.
30. As regards the argument on lack of jurisdiction, we find that subsection (3) of Section 35P lays down in the clearest possible terms that in such a case the pending proceeding shall continue to be dealt with by the Board as if Section 35A had not been substituted. The title of Section 35P, on which Shri Jhunjhunwala sought to place reliance, refers not only to transfer of certain pending proceedings but also to transitional provisions, of which Sub-section (3) is one. The position being amply clear from the statute, there is no need to rely on any other provisions or decisions and we hold that the continuance of the proceedings by the Board after 11-10-1982 was with jurisdiction.
31. As regards the distinction between pre-amendment and post-amendment cases, it is true that there was a material amendment to Item 34A with effect from 10-5-1979. It is also true that the decision in the case of Sri Ramdas Transport Ltd. related to the period subsequent to the amendment. The learned advocate for the appellants is right in his contention that the position prior to the amendment must be considered on its own merits and that the adverse decision in (he Ramdas case would not ipso facto apply to their case.
32. Shri Jhunjhunwala had gone further and argued that certain observations in the Ramdas case were actually favourable to the appellants in regard to the pre-amendment period. One could perhaps read some of these observations as implying that a different classification was possible prior to the amendment. However, as observed by the Board in its order and as also pointed out above, the question of classification prior to the amendment was not before the Tribunal in the Ramdas case and therefore any incidental observations relating to the pre-amendment period cannot be considered as decisive, even if they could bear the interpretation put on them by Shri Jhunjhunwala. It is well known that a case is only an authority for what it actually decides.
33. As against the Ramdas case, two other orders of the Tribunal, one in the case of Purewal and Associates Ltd., and another in the appellants' own case, have been cited, which contain observations which would go against the case of the appellants in the matter before us. We have already reproduced the relevant observations and we need not refer to them again, in view of a still more weighty argument against the appellants' case. This is the recent decision of the Bombay High Court in the Simmonds Marshal case, which was cited by Shri Tayal. That decision, in which the Hon'ble High Court held that Item 52 was applicable, directly meets most of the points raised by the appellants in the present case. It would be seen from that judgment that :- (1) the nuts in that case were held as classifiable under Item 52 even prior to the amendment of Item 34A ; (2) those nuts were also manufactured as per specifications, they cost three or four times as much as ordinary nuts, and were not general fasteners but had specific functional utility ; (3) those nuts also were used as motor vehicle parts and the argument was advanced that they were ordinarily stocked in the auto spare parts market and were not available in the ordinary hardware market ; (4) in that case also evidence regarding special engineering features was produced and admitted ; and (5) in that case also the argument of hostile discrimination, mentioning the case of M/s. Gurmukh Singh, was advanced but rejected.
34. It will, thus, be seen that the case before the Bombay High Court was on all fours with the case before us and that all the material arguments raised before us were also raised before the Bombay High Court but did not find favour. It could be argued that in that case Item 34A was not specifically considered. However, this is not material because the main use of the nuts, in motor vehicles, was specifically referred to and accepted, but it was nevertheless held without hesitation that the nuts were covered by Item 52. Item 52 is a residuary item, and so was Item 34A at the relevant time (vide para 6 above). It is a basic principle of classification that where two items are possible, the specific item will prevail over the residuary item, whether it is one of the restricted ones like Item 34A or the general residuary Item 68. If, anything, the case of M/s. Simmonds Marshal was somewhat stronger than the case of the present appellants, because the nuts they manufactured had nyloc collars, whereas no such feature has been claimed for the goods before us. Nevertheless, the goods before the High Court were held as classifiable under Item 52. Accordingly, we respectfully follow the decision of the Bombay High Court, only adding a few supplementary observations as below.
35. Reference has been made to the alternative name of the goods under consideration as "Wheel mounting pins". This makes no material difference, since apart from the characteristics of the goods themselves, it is admitted that they are known as "Hub-bolts". It is a matter of interest that the name of the appellants themselves is "Fit Tight Nuts and Bolts Ltd.", which would also be an indication that whatever they manufacture comes within the broad description of "Nuts and Bolts".
36. A point has been made that since the bolts hold the motor vehicle wheel to the hub, the driving power is conveyed or transmitted through the bolt. It is consequently argued that the bolt also transmits power.
In this connection Shri Tayal had submitted that transmission of power means something else, such as is done through axles, driving rods etc.
In this connection we may observe that a fastener, as its name implies, is generally used to fasten two articles together, and to prevent relative movement between them. If the main article is stationary, the subsidiary article would also be kept stationary by the fastener. This is found in the case of structures, etc. If the main article is one that moves, the subsidiary article would also move with it. This is found in the case of machines and appliances. If the argument of the appellants were accepted, every screw, bolt or other fastener used in the moving parts of a machine could be deemed to be transmitting power and therefore not a fastener. Taking a common household article like a table fan, the screws or bolts which attach the blades to the rotor would be "transmitting power" and would, therefore, not be "fasteners" but "fan parts"; whereas the screws or bolts which attach the guard to the body of the fan would remain "fasteners". An argument which leads to such illogical results obviously cannot be accepted.
37. We have already observed that no question arises, in this case regarding the application of Rule 11 of the Central Excise Rules.
Further, in the view which we have taken, the question whether the time limits in the Central Excise Rules would apply to a refund claim where there could be said to be a common mistake of law, does not arise. It is therefore not necessary to discuss these aspects.
38. In the result, we find that the Board's orders which are the subject matters of the three appeals before us were correct. We, accordingly, confirm those orders and reject these three appeals.