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Collector of Central Excise Vs. Devidayal Aluminium Industries - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC2430Tri(Delhi)
AppellantCollector of Central Excise
RespondentDevidayal Aluminium Industries
Excerpt:
1. the appellant, collector of central excise, meerut, through this appeal to the tribunal challenges the legality, correctness and propriety of order-in-appeal dated 6-2-84 passed by collector of central excise (appeals), new delhi. by the said order the collector (appeals) held that the respondent's product aluminium gas tan-door falling under tariff item 68 of cet is utensil of aluminium and thus exempt under notification no. 244/77, dated 15-7-1977. he allowed the respondent's appeal with consequential relief.2. at the hearing of the appeal shri s.c. rohatgi, jdr, argued that according to isi specification i.s. 1960 (pt. 1) 1967 for aluminium utensils, the utensils are generally those which are pressed or spun from one piece, the specification gives illustrations katori, thali,.....
Judgment:
1. The Appellant, Collector of Central Excise, Meerut, through this appeal to the Tribunal challenges the legality, correctness and propriety of Order-in-Appeal dated 6-2-84 passed by Collector of Central Excise (Appeals), New Delhi. By the said order the Collector (Appeals) held that the respondent's product Aluminium Gas Tan-door falling under Tariff Item 68 of CET is utensil of aluminium and thus exempt under Notification No. 244/77, dated 15-7-1977. He allowed the respondent's appeal with consequential relief.

2. At the hearing of the appeal Shri S.C. Rohatgi, JDR, argued that according to ISI Specification I.S. 1960 (Pt. 1) 1967 for Aluminium utensils, the utensils are generally those which are pressed or spun from one piece, The Specification gives illustrations Katori, Thali, Parat, Degchi and the like and Tandoor as the utensil is not mentioned in the ISI specification. He also submitted that in common parlance utensil is an item of simple design used for common purposes. The product in question is a multipurpose complicated covered equipment with heat control mechanism which calls for skill in handling. It was also submitted that if this product had electricity as source of energy, it would be classifiable as an electric appliance under Tariff Item 33D. He urged that the order of the Collector (Appeals) should be set aside and that of the Assistant Collector restored.

3. On behalf of the respondents Shri M.D. Chaudhary, learned Advocate, has filed a catalogue of the product which is named Sizzler Gas-Tan-door-cum-Oven. A sample of the product was also produced for our inspection. Though Shri Rohatgi objected to such production of the sample, the sample corresponded with the catalogue of the product and the department itself had not produced any sample. We, therefore, considered it just and proper to look into the sample. An examination of the sample and the catalogue shows that gas enters inside the body of the Tandoor. There is a pan on which pieces of bread or rotis are placed before being heated. This pan with pieces of bread and rotis is placed over the mesh through which the flame passes. The flame or the heat passing through this mesh makes the bread or rotis. As to oven, there is a small aluminium utensil in which cake and the like could be baked. There is no heat control device as has been made out by the Collector in the grounds of appeal or by Shri Rohatgi during arguments.

Shri Chaudhary argued that in trade the product was understood as utensil and the respondent had filed certificates from the trade to that effect before the Collector of Central Excise (Appeals). He strongly defended the orders passed by the Collector of Central Excise (Appeals).

4. As to reference to ISI specifications in the ground of appeal, we find that the same was not referred to at earlier stages either before the Assistant Collector of Central Excise or before the Collector of Central Excise (Appeals). Besides, it is not exhaustive and does not rule out classification of Aluminium Gas Tandoor as utensil. As to next argument that if source of energy for Tandoor were electricity the same would have been classifiable under T.I. 33-D ibid and, therefore, it should have been treated to be utensil, we find that the learned Collector (Appeals) in a well reasoned and considered order after referring to wide meanings of word 'utensil' in various dictionaries like 'Random Dictionary, Webster Universal Dictionary, Words and Phrases Vol. 43A, Words and Phrases Judicially Defined', Hindi meaning of word 'Utensil' as 'Bartan'. Circular dated 20-9-80 by the Government of India, Min. of Commerce, which defines 'Aluminium Utensils', two certificates from Traders certifying the 'Tandoors' as utensils in trade parlance, met the argument about Tariff Item 33-D in the following words : "There is no evidence on records as against the evidence produced by the appellants that the gas Tandoor in commercial parlance is know n as an appliance and not as utensil. Further, in my view the analogy drawn from the item domestic electrical appliances is misplaced. The word utensil has a vaster connotation and can include within its scope even appliances as is obvious from the meanings given in a number of dictionaries cited above. A separate item for domestic appliances (which may include some of the utensils) has been separately carved out under Item 33-D in the Central Excise Tariff.

It does not mean that some of the items like domestic oven would cease to be utensils. Since a separate specific item for domestic electrical appliances has been carved out, the domestic Oven operating with electricity falls under that item being a specific item and therefore, is to be preferred over the classification under Item 68." 5. We are in agreement with the reasoning adopted by the learned Collector of Central Excise (Appeals), New Delhi. We may also point out that according to Concise Oxford Dictionary, 7th Edition, the word 'appliance' inter alia means 'Utensil'. Therefore, the argument that if the source of energy were electricity, the product would merit classification under T.I. 33C would not detract from the product being treated as Aluminium Utensil if the source of energy is not electricity. It is nobody's case that the respondents' product has electricity as a source of energy.

6. It has been urged that in the advertisement the respondents have claimed several virtues for Tandoor; therefore, this would not merit classification as aluminium utensil. The classification of goods in a particular tariff item depends on the facts and circumstances of each case as held by Bombay High Court in Blue Star Ltd. v. Union of India and Ors.-1980 ELT 280 (Bombay). An advertisement by way of attracting the customers can be no criterion for deciding duty liability in a particular tariff item because it is usual for an Advertiser of a product to claim all possible virtues for the product; it would be erroneous to rely on all these virtues for classification of the product.

For the foregoing reasons finding no force we dismiss the appeal and uphold the order of the Collector of Central Excise (Appeals).


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