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Rawji Industrial Corporation Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberAppeal No. 454 of 1981, 1984 (On Appeal from 1981 ELT 734 (Bom.))
Judge
Reported in(1984)86BOMLR158; 1989(23)LC452(Bombay); 1989(42)ELT199(Bom); 1985MhLJ691
Acts Central Excise Rules, 1944 - Rule 8(1); Central Excise Act, 1944 - Sections 36(2)
AppellantRawji Industrial Corporation
RespondentUnion of India
Excerpt:
central excise and salt act (1 of 1944); section 3(1); first schedule, item no. 15a(2) - central excise rules, 1944, rule 8(1) -- notification of govt. of india, no. 68 of 1971 dated may 29, 1971 -- fibre glass reinforced polyester corrugated roofing whether 'sheets' within item 15a (2) and whether not covered by exemption granted under notification no. 68 of 1971 -- interpretation of items in customs and excise tariffs -- limited value of dictionary meanings -- word 'sheets' in item 15a(2) -- connotation of -- classification of an item by excise department not shown perverse or patently erroneous -- limited power of court to interfere -- constitution of india, articles 226, 227. ;for the interpretation of items in customs and excise tariffs, what is relevant is not so much the..........glass reinforced polyester. in or about june, 1973 the petitioners addressed a letter to the central excise authorities, inter alia, inquiring whether fibre glass reinforced polyester roofing intended to be manufactured by them would be excisable. the appellants were informed by the excise authorities by their dated 2nd june, 1973, that the said item would be excisable under tariff item 15a(2) but exempted from the payment of the whole of the duty leviable thereon under government of india notification no. 68 of 1971, dated 29th may, 1971. by a letter dated 5th december 1973, the superintendent, central excise, informed the petitioners that the corrugated roofings being sheets were not entitled to the exemption under the said notification. the result would be that they would be.....
Judgment:

Kania, J.

1. This is an appeal against the judgment and order of Pendse, J., dated 11th September, 1981, dismissing the writ petition filed by the appellants. The short question which arises in the appeal for determination is whether the conclusion of the Excise Authorities that the 'corrugated roofing' manufactured by the appellants was a sheet could be said to be bad in law or perverse on the evidence before them.

2. The short facts necessary for the disposal of this appeal are as follows :

The petitioners produce articles of fibres glass reinforced polyester. In or about June, 1973 the petitioners addressed a letter to the Central Excise Authorities, inter alia, inquiring whether fibre glass reinforced polyester roofing intended to be manufactured by them would be excisable. The appellants were informed by the Excise Authorities by their dated 2nd June, 1973, that the said item would be excisable under Tariff Item 15A(2) but exempted from the payment of the whole of the duty leviable thereon under Government of India Notification No. 68 of 1971, dated 29th May, 1971. By a letter dated 5th December 1973, the Superintendent, Central Excise, informed the petitioners that the corrugated roofings being sheets were not entitled to the exemption under the said notification. The result would be that they would be liable to duty at 50% and valorem as provided by Item 15A(2) of the central Excise Tariff. The petitioners did not accept the view of the Superintendent and made a representation dated 10th July, 1974 to the Assistant Collector, Central Excise, claiming that the classification of the aforesaid product by the superintendent was not proper. The Assistant Collector gave a hearing to the appellants and came to the conclusion that the article in question was plastic material manufactured by the aid of polyester resin reinforced by fibre glass and was obviously a plastic sheet and would be covered by Tariff Item 15A(2) of the Central Excise Tariff and was not entitled to exemption.

3. The Appellants preferred an appeal against the decision of the Assistant Collector to the Appellate Collector of Central Excise. The said appeal was allowed by an order of the Appellate Collector dated 11th June, 1975, wherein the Appellate Collector held that 'Keeping in view the process of manufacture, since the product is directly molded from resins, which has got profiles and it cannot be re-shaped, I order that the goods are exempted under Notification No. 68/71. I therefore, allow the appeal and set aside the order passed by the Assistant Collector.'

4. The Government of India then served on the appellants a show cause notice dated 21st May, 1976 calling upon the appellants to show cause why the order of the Appellate Collector should not be reviewed under Section 36(2) of the Central Excises and Salt Act, 1944. The appellants were given a hearing in the review proceedings. Unfortunately for the appellants, they did not lead any evidence as to the relative thickness of the various types of fibre glass reinforced Polyester roofings manufactured by them nor did they lead any evidence regarding the size of the pieces manufactured by them nor did they lead any evidence regarding the size of the pieces of roofings manufactured by them. They also did not lead any evidence regarding the extent of corrugation applied to these roofings, What is more important of all is that they failed to lead any evidence regarding the question as to whether, in trade parlance or common parlance, such roofings were regarded as plastic sheets or not. The appellants also did not dispute that they were covered by Excise Tariff Item 15A(2) of the Central Excise Tariff but merely claimed exemption under the said notification. The Central Government by its order dated 29th August 1977 set aside the order of the Appellate Collector and restored the order of the Assistant Collector. The Central Government held that the fibre glass reinforced polyester corrugated roofings manufactured by the appellants were nothing but sheets, though corrugated, and were covered by Item 15A(2) of the said Act and were not covered by the exemption granted under the said notification.

4A. The appellants filed the aforesaid Writ Petition challenging the order passed by the Central Government in review. The said Writ Petition was dismissed by Pendse, J. by his judgment and order dated 11th September 1981. Pendse, J. came to the conclusion that the said roofings were nothing but corrugated sheets and must be regarded as plastic sheets. It is the correctness of this decision which is sought to be challenged before us in this appeal.

5. It is necessary to set out some of the relevant provisions of law in order to appreciate the controversy raised before us. Item 15A(2) of the First Schedule to the Central Excise Act, as it then stood, read as follows :

'Articles made of plastics, all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible, including lay flat tubings, and polyvin chloride sheets, not otherwise specified Fifty per cent. ad valorem.'

The relevant part of Notification No. 68 of 1971 reads thus :

'In exercise of the powers conferred by rule 8(1) of the Central Excise Rules, 1944, the Central Government hereby exempts articles made of plastics, all sorts, failing under sub-item (2) of Item No. 15A of the first Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) except :-

(i) rigid plastic boards, sheeting, sheets, and films, whether laminated or not; and

(ii) flexible polyvinyl chloride sheetings, sheets, films and lay flat tubing not containing any textile materials; from the whole of the duty of excise leviable thereon.'

There is a proviso to the said notification, which is not relevant for our purposes.

6. The item with which we are concerned is, as we have already pointed out, fibre glass reinforced polyester corrugated roofing. The process of manufacture is described in Exhibit 'O' to the petition, which is basically a moulding process.

7. The first submission of Mr. Chagla, the learned counsel for the appellants, is that a sheet is essentially something which is relatively thin and flat. As the said roofings manufactured by the appellants were corrugated, and not flat, they could never be regarded as sheets. In support of this argument it was submitted by Mr. Chagla that, even if, grammatically speaking, the term 'sheet' was not confined to things which were relatively thin and flat, that was the meaning intended to be given to the term 'sheet' under the said Item 15A(2) and the said exemption notification, as plastic articles having a profile shape were specially mentioned and sheets were separately mentioned.

8. Now, we find it difficult to accept this submission. In the first place, the most relevant consideration for the decision of the instant case before us would be as to how this article is regarded in trade parlance and no evidence in this regard was led by the appellants before the Excise authorities or in the petition. It is well settled that for the interpretation of items in Customs and Excise Tariffs, what is relevant is not so much the dictionary meaning given to the words used in the item concerned but whether the article in question was covered by that description in trade parlance or common parlance. It was the appellants who applied for clarification and it was really for them to have led this evidence, particularly as they sought to have the benefit of an exemption. As we have already pointed out, unfortunately for them, they failed to lead any such evidence. It is also well settled that meanings given in dictionaries are of a very limited value in construing the words of description used in items in the Central Excise Tariff. Even if we go to the dictionary meanings in the present case, we do not find any support for the contention of Mr. Chagla. We may turn at this stage to the meaning of the word 'sheet' given in Oxford English Dictionary by Murray, 1933 Edition, Volume IX, page 668-669. The meaning of the term 'sheet' which appears to us to be relevant is at paragraph (9) on page 669, and it runs thus :

'A relatively thin piece of considerable breadth of a malleable ductile, or pliable substance.'

What is stated at sub-paragraph (d) would show that galvanised corrugated sheets of iron or steel were regarded as iron or steel sheets. This would go against the argument of Mr. Chagla. Mr. Chagla wanted to rely on the meaning of the said term at paragraph (8) which runs thus : 'A broad expanse or stretch of something lying out flat, presenting a white or glistening surface, or forming a relatively thin covering or layer'. In the present case, the said roofings cannot be regarded as a covering or a layer as contemplated in that paragraph. Further contents of that paragraph show that the meaning there was intended to cover things like sheet of water and of ice, of vegetation and of sediment, and not an item like plastic. Strong reliance was placed by Mr. Chagla on the meaning of the said term 'sheet' given at page 1171 of the Concise Oxford Dictionary, 5th Edition. It, inter alia, states that a 'sheet' is 'Broad, more or less flat, piece of some thin material, e.g. of iron, glass, etc.'. Now, this meaning also does not help the appellants in this case because no evidence has been led to show as to whether the said roofing can be said to be relatively thin and as to the extend of corrugation. The dictionary meaning, therefore, are not of much assistance to Mr. Chagla, apart from the question that dictionary meaning are of limited in a matter like this.

9. We next come to the argument of Mr. Chagla based on the wording of Item 15A(2) itself. It was submitted by him that the aforesaid corrugated roofing manufactured by the appellants could not be regarded as sheets because this had a profile shape and sheets and articles having profile shapes were mentioned separately. It is not possible to accept this contention either. In the items specially referred to in the earlier part of the said item, we find tubes, rods and sticks, which certainly have profile shapes, so that merely because an article has a profile shape it cannot be said that it was not included in the articles specially described earlier. We are unable to accept the argument that merely because an article has a profile shape, it must necessarily be excluded from that scope of the term 'sheet' within the connotation of the said word in Item 15A(2).

10. Our attention was drawn by Mr. Chagla to Item 17(2) (before amendment), which runs as follows :

'Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugating, creeping and design printing), not elsewhere specified ... Forty per cent. ad valorem.'

He also drew our attention to Item 23C, which runs as follows :

'Asbestos cement products, all sorts, including flat and corrugated sheets, pipes and tubes and titles ....... Fifteen per cent. ad valorem.'

It was urged by him that this shows that when 'paper and paper board' and 'Asbestos Cement' products, after corrugation, were sought to be included in the general item of 'paper and paper board' and 'asbestos cement' respectively this was specifically made clear. In our view, there is no substance in this argument. Merely because it is clarified that corrugated paper is to be included in paper, it cannot be said that but for such clarification, it would not have been so included. The same is the position regarding asbestos cement products. Just to illustrate, even without the clarification, it is quite apparent that asbestos cement tubes would be clearly included in the item 'asbestos cement products' and it is just not possible to suggest that the clarification shows that, but for it, asbestos cement tube would not be included in the general definition of asbestos products. The same is the position regarding the item 26AA(ii) before its amendment in 1983.

11. We will now refer to the case of Tufflite Plastics Pvt. Ltd., Coimbatore v. Union of India and Another, 1978 ELT 509 cited by Mr. Chagla. In that decision Single Judge of the Madras High Court took the view that the 'side covers for bath tubs' which were manufactured by the petitioners they were not commercially understood as 'plastic rigid board' and, therefore, were not classifiable under Item 15A of the Central Excise Tariff. We fail to see how this decision is of any assistance to Mr. Chagla in his argument, particularly as no evidence has been led before us to show as to whether the roofings manufactured by the appellants in the case before us were commercially regarded as 'plastic sheets'. Moreover, it is significant that the learned Judge of the Madras High Court has pointed out in that judgment as follows :

'I am also alive to the decisions of the Supreme Court, which lays down that in matters like this the department has got a wide desecration with regard to classification of an item. However, where that classification is perverse, certainly the Court can interfere.'

In the case before us and on the material shown to the Excise Department, it could never be said that the Department was perverse or obviously in error in classifying the aforesaid roofings manufactured by the appellants as 'plastic sheets' and hence we fail to see why we should interfere with that decision.

12. It was next sought to be contended by Mr. Chagla that the aforesaid roofings manufactured by the appellants were not covered at all under item 15A(2) of the aforesaid Schedule, as the said roofings were made not only out of polyester but of polyester reinforced with fibre glass. It was pointed out by him that there are averments in the petition to the effect that the said corrugated roofings contained 25 to 50 per cent. fibre glass and 75% to 50% polyester resins. It was submitted that an article which contains 25% to 50% fibre glass, can never be regarded as 'article made of plastics' within the meanings of the said Tariff Item 15A(2) as fibre glass is distinct from plastics. It is not possible to accept this argument either. In fact, it is not open to Mr. Chagla to raise this contention at all as no such contention has been raised before any of the Excise Authorities right up to and inclusive of the stage of Review. If such a contention had been raised, the matter could have been looked into from that angle and necessary evidence could also have been gathered. It is not possible to say that merely because an article is not purely of plastic, it cannot be said to be a plastic article in trade parlance or for the purposes of entries in the Customs Tariff or Excise Tariff. There is no evidence before us to show as to whether in trade parlance articles containing mixtures of plastics and fibre glass were regarded as plastic articles or something else. This contention must also be, therefore rejected.

13. Before parting with the matter, we would, however, like to make one thing clear. What we have stated above makes it clear that the appellants have failed to lead the necessary evidence regarding commercial parlance and also some other evidence, which was certainly relevant. If any assessment proceedings are still pending, this judgment will not preclude the appellants from leading evidence in such assessment proceedings to show as to how the aforesaid roofings manufactured by them were regarded in commercial parlance and also lead such other evidence as they might be permitted to do.

13. In the result the appeal fails and is dismissed. Looking to all the facts and circumstances of the case, there will be no order as to costs.


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