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Simmonds Marshal Ltd. Vs. M.R. Baralikar, Assistant Collector of Central Excise, Pune and Others - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2513 of 1978
Judge
Reported in1984(2)BomCR602; 1984(2)ECC42; 1989(20)LC321(Bombay); 1985(22)ELT378(Bom)
Acts Central Excise Rules, 1944 - Rule 10; Central Excise Act, 1944 - Sections 36(2)
AppellantSimmonds Marshal Ltd.
RespondentM.R. Baralikar, Assistant Collector of Central Excise, Pune and Others
Excerpt:
central excise - tariff item--nyloc self-locking nut--whether a nut and covered by tariff item 52--construction of statutes--trade notices on tariff items--how far relevant in interpreting entries--principle of contemporaneous exposition, whether applicable--personal inspection of article--whether vitiates judgment--revision--differing decisions of government of india, whether amount to discrimination--notice--short levy--demand notice for collection of amount short levied without issuing show cause notice--validity--writs under constitution--high court, whether can sit as court of appeal in writ jurisdiction--central excises and salt act (1 of 1944), section 36(2); schedule i, tariff item 52--central excise rules, 1944, rule 10. - - thus in the present writ petition initial order as.....dharmadhikari, j.1. the petitioners, that is, simmonds marshal ltd., are carrying on business of manufacturing and selling a product known as 'nyloc self-locking nut' (hereinafter referred to as the petitioners' product). initially from the year 1971 to 1975, i.e., till tariff item 68 was introduced, the petitioners were paying the duty at the rate specified in tariff item 52. tariff item 68 was introduced on 1st april, 1975. thereafter correspondence took place between the petitioners and the excise authorities on the question of classification of the said petitioner's product. vide order dated 17th june, 1976, the authorities held that the petitioners' product was rightly classified under tariff item 52. against this order the petitioners filed an appeal to the appellate collector. the.....
Judgment:

Dharmadhikari, J.

1. The petitioners, that is, Simmonds Marshal Ltd., are carrying on business of manufacturing and selling a product known as 'nyloc self-locking nut' (hereinafter referred to as the petitioners' product). Initially from the year 1971 to 1975, i.e., till Tariff Item 68 was introduced, the petitioners were paying the duty at the rate specified in Tariff Item 52. Tariff Item 68 was introduced on 1st April, 1975. Thereafter correspondence took place between the petitioners and the excise authorities on the question of classification of the said petitioner's product. Vide order dated 17th June, 1976, the authorities held that the petitioners' product was rightly classified under Tariff Item 52. Against this order the petitioners filed an appeal to the Appellate Collector. The Appellate Collector, vide his order dated 23rd August, 1976, allowed the appeal filed by the petitioners and held that the petitioners were liable to pay duty at the rate specified in Tariff Item 68 and not Tariff Item 52. On that basis the petitioners paid duty and were allowed to clear the product. On 15th June, 1977, a show cause notice was issued by the Central Government under Section 36(2) of the Central Excises and Salt Act, 1944. The petitioners submitted their reply to the said show cause notice and also forwarded various enclosures, including the certificates from dealers, consumers and consultants, etc. An opportunity of being heard was also given to the petitioners and vide order dated 31st March, 1978, the Central Government came to the conclusion that the product of the petitioners squarely falls under Tariff Item 52 and therefore the petitioners were directed to pay tax accordingly. Vide order dated 25-4-1978, the applications filed by the petitioners for refund of tax for the period from June, 1971 to June, 1976, and July, 1976 to May, 1977, were also rejected. The petitioners then submitted a new classification list under Tariff Item 52 obviously under protest. A notice for short levy of the duty and claiming an amount of Rs. 4,79,728.50 by way of difference of the duty for the period from 27th May, 1977 to 16th April, 1978, was also served on the petitioners. The petitioners by their reply dated 24th April, 1978, opposed the said notice. Ultimately the present writ petition came to be filed in July, 1978, challenging the order passed by the Central Government classifying the petitioners' product under Tariff Item 52. The petitioners have also prayed for consequential reliefs including the refund of duty already paid.

2. When the matter came up for hearing before the Division Bench of this Court, i.e., Masodkar and Kanade, JJ., On 24th February, 1981, this Court passed an interim order calling for a finding. Para 3 of the said order reads as under :

'We have gone through the record of the case with the assistance of the learned counsel on both sides. As far as the return is concerned, to say the least, it makes cryptic statements with regard to the product in issue. In fact, it does not explain the trade notices right from 1971 to 1977. The impugned order made by the Government of India merely states that the trade notices do not support the view that the type of nuts manufactured by the party would be outside the scope of entry No. 52. No reasons are available in the order itself. In fact the impugned order does not record a finding as to whether this type of product is known to the commercial world as a nut or not. Unless such a finding is recorded, it will be difficult to uphold the classification one way or the other. In want of sufficient material on record, we think the ends of justice will be met by directing the Government of India, which made the order produced at exhibit L on 31st March, 1978 to hear the petitioners and the department and thereafter make an appropriate order recording a finding as to whether such a product manufactured by the petitioners is known in the commercial world as a nut or as any other product. If any evidence is tendered by either the petitioners or the department on this aspect, the Government of India will take the same into account before recording a finding one way or the other. The finding shall be certified to this Court in the present petition within a period of three months. The parties are at liberty to apply.'

After this order was passed the petitioners received a letter from the Collector furnishing some documents on which reliance was placed by the Government for the classification of the petitioner's product. The petitioners submitted their reply together with the relevant evidence. The petitioners were also granted personal hearing by joint Secretary to the Government of India when the petitioners furnished further certificates. After appreciating all the evidence on record the Government of India vide order dated 9th September, 1981, came to the conclusion that the product of the petitioners squarely falls under Tariff Item 52. As a result of this finding the petitioners amended the petition. Thus in the present writ petition initial order as well as second order dated 9th September, 1981, are challenged on various grounds.

3. Shri Bhaba, the learned counsel appearing for the petitioners, contended before us that on the true construction of Item 52, an article which is exclusively a fastener and with no other functional utility alone can fall under 52. This position has been made amply clear by the trade notice issued by the competent authority dated 6th August, 1971, and the said notice would safely be described as contemporaneous exposition of the trade meaning of the said entry. In support of this contention Shri Bhaba has placed reliance upon the decision of the Supreme Court in K. P. Varghese v. Income-tax Officer, Ernakulam, : [1981]131ITR597(SC) . According to the learned counsel the petitioners' product has other functional utility and this position has been accepted by the Government of India in its orders. To prove this the petitioners have also produced overwhelming evidence. The test laid down in the trade notice dated 6th August, 1971, is also reiterated in other nine trade notices issued by the competent authorities from time to time. This test has been applied by the Central Government in the case of Gurumukh Singh as well as in the case reported in 1983 E.L.T. 531 : Government of India (Revision Case) In re : Sohadar Sovil Dunkan Ltd. This test has also been applied by the Appellate Collector in Pioneer Iron and Bross Work's case and in the case reported in 1979 Cen-cus 131D : Western Coalleield Ltd. According to the learned counsel these trade notices have been issued by the competent authorities and are, therefore, binding upon the Government of India. In support of this proposition the petitioners have placed reliance upon the decision resorted in Guest Keen Williams Ltd. v. Union Of India 1980 E.L.T. 6 (Bom.) and Star Chemicals (Bombay) Ltd. Union of India 1980 E.L.T. 133 (Bom.). It is further contended by Shri Bhaba that if the order passed by the Appellate Collector in the petitioner's case was in conformity with these trade notices and therefore was perfectly legal and valid, then the subsequent orders passed by the Government of India are wholly vitiated by errors apparent on the face of the record and therefore are liable to be quashed.

4. It was also contended by Shri Bhaba that it is by now well-settled that the articles referred to in an entry of the Schedule to the Excise Act have to be understood in the popular sense, that is to say, in the sense in which the articles are understood by those dealing in them. In support of this proposition he has placed strong reliance upon the decision of the Supreme Court in Indo International Industries v. Commissioner of Sales Tax, U.P. 1981, E.L.T. 325 (SC) as well as the decision of this Court in B. R. Syiem v. P. S. Lulla (1930) 72 Bom. L.R. 534. According to the learned counsel even in the ITC Schedule nyloc self-locking nuts are separately shown from nuts and thus it is clear that according to the trade understanding nyloc self-locking nuts are not nuts. This position is further clear from the voluminous evidence produced by the petitioners. This position is also accepted in the drawback scheme of the Government of India wherein also nuts are treated differently from nyloc self-locking nuts. The Sectional Committee of the ISI consists of eminent persons in trade, industry and the Government as also consumer and others. The Supreme Court has stated that the view of the ISI as regards that product is known in the trade should be accepted. In support of this proposition he has placed reliance upon the decision in Parrys Confectionery Ltd., Madras v. Government of India, 1980 E.L.T. (Mad.) and Union of India v. Delhi Cloth and General Mills Co. Ltd., 1977 E.L.T. 199 (SC). He has also placed reliance on IS 1367 and 7002 and contended that according to the understanding of the trade the self-locking nuts with nyloc insert like the petitioners' product are not treated nor are understood as nuts or as fasteners. The petitioners' product are not treated nor are understood as nuts or as fasteners. The petitioners' product is three to four times the price of ordinary nut. It is manufactured from special material and has special specifications and designs, is used by a separate class of consumers, and is inter alia used for locking and providing seal to any liquid entering a particular area, etc., and is not merely used for fastening as a nut is used. Thus if a cumulative view is taken of various reports as well as the opinions of the consumers and traders and experts, it is quite obvious that the petitioners' product is not a nut. It is also not sold in the hardware market where nuts are sold. The petitioners' product is not made of base metal as required by Item 52 but it is also made of nylon inasmuch as it has a nyloc collar which is a critical and substantial part of the product. In any event, if two views are possible, then benefit should go to the assessee in the matter of levying tax and in this connection Shri Bhaba has placed reliance upon the decision of the Supreme Court in Garware Nylons Ltd. v. Union of India 1980 E.L.T. 249.

5. It was then contended by Shri Bhaba that the department had acted with hostile discrimination between the petitioners and two other concerns, i.e., Pioneer and Gurumukh Singh. In these cases items belonging to the said manufacturers are treated as outside the scope of Item No. 52 and the petitioners are being treated differently. The second order passed by the Government of India dated 9th September, 1981, which now holds, the field, is challenged by Shri Bhaba on the ground that it is passed in violation of principles of natural justice. It relies upon particular ISI without giving an opportunity to the petitioners to meet the same. It relies upon BTN again without giving such an opportunity. It does not refer to nor considers any part of the voluminous evidence produced by the petitioners. It relies on the opinions of Bajaj Auto Limited and Mahindra Owen Limited without giving an opportunity to the petitioners to cross-examine the said persons. It places reliance on wrong IS 1367 and 1383 which are not applicable to the present the case when the proper IS is IS No. 7002. For coming to the conclusions that the product falls under Item 52 it places reliance on BTN which is not permissible. It by-passes the trade notices issued by the competent authorities. Thus in substances it is contended by Shri Bhaba that the order passed by the Government of India is vitiated by errors apparent on the face of record and is also contrary to the well established principles of natural justice.

6. On the other hand it is contended by Shri Tipnis, the learned counsel appearing for the respondents, that in the present case what is obvious is being disputed. From the bare reading of entry 52 it is quite clear that the petitioners' product squarely fall in the said entry. According to Shri Tipnis the Government of India rightly placed reliance upon the representations made by the petitioners to their customers and dealers, it being the best evidence. The major portion of article is manufactured from the base metal. While considering as to whether a particular product falls within a particular entry, it is the article as a whole which will have to be taken into consideration. So construed, it is quite obvious that the petitioners' product is nothing but a threaded nut which is mainly used as a fastener, though it may have some additional advantages. It would at the most be described as special type of fastener or improvised nut. It is basically used as fastener, and therefore it was rightly described as nut by the Central Government. Though nylon collar makes the nylon self-locking nuts of a distinguished character, the nuts remain nuts, which are primarily used as fasteners. It is not correct to say that fastening is only its incidental function. The trade notices issued by the subordinate authorities are neither binding upon the Government of India nor could be equated with the definition of the item. The decisions given by the Government of India in other cases are also not relevant since the matter therein has been decided having regard to the facts and circumstances of these cases qua a particular item involved therein. He has also contended that the matter regarding M/s. Pioneer Iron and Brass Works, is pending in this Court in writ petition No. 3030 of 1978. The trade notices have no statutory force nor the judgments of the Government of India in other cases could be equated with the judgments in rem. In this context Shri Tipnis has also placed reliance upon the petitioners' own conduct as well as the literatures issued by the petitioners. According to him right from the year 1971 to 1975, i.e., the new entry 68 was introduced in the Schedule the petitioners have paid duty on the basis of entry 52 itself. Reliance on IS is not something which is unknown to the trade. It is not correct to say that IS has taken the product out of the general category of nuts. BTN being based on international market may not themselves be relevant. However, ITC and other reports are based on BTN and therefore it cannot be said that they are wholly irrelevant. Shri Tipnis conceded that it would have been better if each and every piece of evidence was referred to in the order of the Central Government but from this a conclusion cannot be drawn that the said evidence is omitted from consideration. According to him after taking into consideration the whole evidence on record the Government of India rightly came to the conclusion that the product of the petitioners squarely falls under Item 52. Before coming to this conclusion a reasonable opportunity was given to the petitioners to adduce evidence and to put forward their case. Thus the finding of fact recorded by the Government of India is based on evidence on record which cannot be challenged in a writ jurisdiction of this Court under article 226 of the Constitute of India.

7. Therefore, from the rival contentions raised before us it is quite clear that the controversy which falls for our consideration is in a very narrow compass. The relevant entry, i.e., entry 52 of the Schedule reads as under :

'Bolts and nuts, threaded or tapped, and screws, of base metal or alloys thereof, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.

Explanation. - The expression 'bolts and nuts, threaded of tapped, and screws' used in this item shall include bolt ends, screw studs, screw studding, self-tapped screws, screw hooks and screw rings.'

It is by now fairly well-settled that the words or expression describing an article or commodity should be construed in the sense in which it is understood in the trade by a dealer or consumer. It is they who are concerned with it and it is the sense in which they understand it, that constitutes a definitive index of legislative intention. In a taxing statute words of ever day use must be constructed not in their scientific or technical sense but as understood in common parlance. Therefore the words 'bolts and nuts' in Item 52 of the schedule will have to be interpreted according to their popular sense, meaning that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it : see Porrits and Spencer (Asia) Ltd. v. State of Haryana : 1983(13)ELT1607(SC) . The Webster's New Twentieth Century Dictionary describes 'nut' as 'a small block, usually a metal, with a threaded hole through the center, for screwing on to a bolt'. The Central Government on the appreciation of all the evidence on record came to the conclusion that nyloc nut is basically a nut used for fastening and therefore falls under entry 52. However since a contention was raised before us that while recording the said finding the Central Government has not taken into consideration the material evidence produced by the petitioners, including the various reports and the trade notices, practically we have heard this writ petition as if we are hearing an appeal. With the assistance of the learned counsel appearing for both sides, we have gone through the entire evidence on record. The petitioners as well as the respondents have produced various certificates and opinions from the dealers, customers as well as consumers. ISI as well as other reports were also referred to during the course of arguments. Reliance was also placed on the trade notices issued by the competent authorities. First such trade notice dated 6th August, 1971, was issued by the Collector of Pune. It was stated in this notice that mere existence of a thread or tapping would not render a product as bolts, nuts or screw unless its utility is exclusively that of a fastener. It appears that similar such trade notices were issued by the Collectorate of Bombay on 4th July, 1977, Chandigarh Collectorate dated 19th May, 1977. Baroda Collectorate dated 25th May, 1977, Jaipur Collectorate dated 31st May, 1977, West Bengal Collectorate dated 28th May, 1977, Madurai Collectorate dated 28th May, 1977, Bangalore Collectorate dated 27th May, 1977, Delhi Collectorate dated 26th May, 1977. The petitioners are relying upon the expression, 'exclusively' as used in these trade notices. However, it is pertinent to note that these trade notices are issued by the Collectorate and not by the Government of India itself. It is no doubt true that the rule of construction by reference to contemporaneous exposition is a well-established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous : see K. P. Varghese v. Income-tax Officer, Ernakulam, : [1981]131ITR597(SC) . If the trade notices were issued by the Government of India itself or the highest authority entrusted with the execution of provisions of the Act, then in a given case the matter might stand on a different footing. However, in the present case these trade notices are issued by different Collectorates and not by the highest authority. Further the language of entry is plain and unambiguous. 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. From the plain reading of entry 52 as a whole, it is quite clear that it is worded in generic terms. It is all comprehensive. Therefore it is quite obvious that the expression 'exclusively' as used in trade notices is based on misunderstanding. Similar is the position about the Government of India's decision in other matters. From the bare reading of the order of the Government of India in Gurumukh Singh's case it is quite clear, that in the case the Government of India was concerned with U bolts, and U clamps which specially designed for use in automobiles. The case of M/s. Pioneer Iron and Brass Works is still sub judice as a writ petition is still pending. In our opinion Shri Tipnis is right in contending that the decisions in those cases turn on the facts of those cases and the nature of the product involved therein. No general rule is laid down in the said decisions. Therefore, the controversy raised before us will have to be decided on the basis of the evidence adduced by the petitioners as well as the department. It is true that voluminous evidence has been adduced in the present case both on behalf of the petitioners and the department. The department is relying upon the following documents :

'(i) Copy of letter dated 1st April, 1981, from Bombay Cycle and Motor, Poona Agency.

(ii) Copy of letter dated 1st April, 1981, from Silver Jubilee Motor P. Ltd.

(iii) Copy of letter dated 1st April, 1981, from Penosh Transport.

(iv) Copy of letter dated nil from Shri P. C. J. Jadhave.

(v) Copy of letter dated 3rd April, 1981, from Shri V. V. Apte of Kirloskar Oil Engines.

(vi) Copy of letter dated 3rd April, 1981, from Automatic Components, Pimpri, Pune.

(vii) Copy of letter dated 6th August, 1981, from Mahindra Owen Ltd.

(viii) Copy of letter dated nil from Bajaj Auto Ltd.

(ix) Translated copy of letter dated 3rd April, 1981, from Shri K.S. Walks of Kirloskar Oil Engines Ltd.

(x) Copy of opinion of M/s. Telco Ltd.'

On the other hand the petitioners are relying upon the letters received by them from various dealers and consumers. After the interim order was passed by this Court the petitioners produced before the Government of India the following documents :

'1. A reply to a questionnaire from M/s. Super Auto Parts Agency, a separate automotive spare parts shop in a different locality after with the relevant questionnaire.

2. A certificate from M/s. Regal Hardware, Pune.

3. A certificate from M/s. Premier Iron and Hardware Stores, Pune.

4. A reply to a questionnaire from M/s. Hindustan Motors Ltd. along with the relevant questionnaire.

5. A reply to a questionnaire (same as for M/s. Hindustan Motor Ltd.) from M/s. Mahindra and Mahindra Ltd.

6. A certificate from Messrs Tata Engineering and Locomotive Co. Ltd.

7. A certificate from Messrs Ruplas (India) Ltd.

8. A certificate from Messrs Kirloskar Cummins Ltd.

9. A certificate from Messrs Kirloskar Oil Engines Ltd.

10. A certificate from Messrs Ruston and Hornaby (I) Ltd.

11. A certificate from Messrs Mahindra Owen Ltd.'

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 ISI 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 applications 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 type 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 nyloc 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 noting but a self-locking nut. It is also so described in the literature issued by petitioners, which is in the nature of a representation made to traders and consumers. The nylon ring at the top of the nut only serves to improve the fastening quality. It is meant for universal application. It is merely an improved variety of nut, which is basically a fastener having special property of holding fast. In case of ordinary nuts to achieve this object a spring washer or cotter pin or one more ordinary nut, is used. Even from the certificates on which reliance is placed by the petitioners it is clear that a nyloc nut has an additional function of locking, but this function is in addition to fastening. It is the commodity as 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.

8. Much controversy was raised before us about the reports of ISI, BTN, ITC, IS 1367, 1362, IS 7002. All the ISI reports will have to be read together and harmoniously. If so read it cannot be said that it takes the product out of the category of nuts. In our opinion Shri Tipnis was also right in placing strong reliance upon the literature issued by the petitioner-company which could safely be described as representations made by them to the consumers and dealers. We have gone through the said literature. The literature itself described it as nyloc self-locking nuts. It describes its principles, different advantages, such as economical and technical, but ultimately it is nothing but a self-locking nut. On a comprehensive consideration of the material before us, there is not 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, or 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. Therefore it cannot be said that the view taken by the Government of India is not the correct view of the matter. This being position we have no hesitation in coming to the conclusion that the Government of India was right in holding that the product of the petitioner is covered by entry 52. In any case it cannot be said that the said finding requires any interference in the extraordinary jurisdiction of this Court under article 226 or 227 of the Constitution of India. Though we have heard this writ petition as if it was an appeal, while exercising writ jurisdiction this Court cannot arrogate to itself the powers of a court of appeal, which it did not posses under the law.

9. In the view which we have taken it cannot be said that there is any discrimination against the petitioners. As already observed that cases of M/s. Pioneer or Gurumukh Singh were decided on their own facts and no general rule of law was laid down in that behalf. To say that least it is not possible to lay down any general rule while deciding a question as to whether a particular article or commodity is covered by an item or the entry in the Schedule. This must obviously depend upon the facts and circumstances of each case.

10. It is also not possible for us to come to the conclusion that the order passed by the Government of India is vitiated it being contrary to the principles of natural justice. The petitioners were give reasonable opportunity of being heard as well as to produce their evidence. The petitioners were also heard personally before the matter was decided by the Government of India. while deciding the question raised, as an aid to the construction, the Government of India has taken into consideration the opinion expressed by the consumers and dealers as well as ISI and other reports. However, ultimately the decision is based on the evidence produced before it.

11. In the view which we have taken, it is not necessary to make a detailed reference to the various decisions cited before us, since the propositions of law laid down therein are not disputed. Ultimately the question will have to be decided on the basis of the evidence adduced before the Government of India. As already observed, after going through the entire evidence on record, we are satisfied that the predominant and basic function of the product of the petitioners is fastening advantages. It is quite clear from the material placed before us that if the additional advantages were not there, then for achieving the said purpose a pin or additional nut would be required. However this additional advantage will not take out the product from the category of nuts as popularly understood in the trade. Thus in substance it is a special kind of nut and nothing more. Therefore we have no hesitation in coming to the conclusion that it is covered by Item 52 of the Schedule.

12. It is not correct to say that the order of the Government of India is based solely on visual inspection of the product and is therefore illegal. The decision of the Government of India is not based on visual inspection of the article. It is well-settled that if the inspection of an article is made only for the purpose of understanding the evidence and is not used as a substitute for evidence, then it will not vitiate the finding as the judgment in that behalf is not based solely on the result of the personal inspection : See Ugam Singh v. Kesrimal, : [1971]2SCR836 .

13. However we find some substance in the contention raised by the petitioners that the demand made by the respondents vide their letter dated 21st April, 1978, is illegal and without jurisdiction. It is not disputed that the demand is referable to rule 10 of the Rules. It is not disputed by Shri Tipnis that this demand letter is a direct notice of demand and is not a show cause notice.

14. This being the position obviously the said letter of demand is beyond the scope of rule 10. This is more so when now it is an admitted position that the amount shown therein is not correct. In this context Shri Bhaba has rightly placed reliance upon the decision of this Court in Misc. Petition No. 944 of 1973 - Duke and Sons Ltd. v. G.T. Kundnani, Superintendent, Central Excise decided by Rege, J., on 8/11th October, 1976. In the said decision Rege, J., held that the demand notice issued under rule 10 of the Rules without first issuing a show cause notice as specifically provided under the said rule is invalid and liable to be set aside. Similar view has been taken by Mody, J., in Precision Steel Fasteners v. Union of India 1980 E.L.T. 692 (Bom.). In Jasmine Mills Pvt. Ltd. v. A. V. Venkateswaran : (1977)79BOMLR438 this position was conceded by the Government of India. In view of this it was not possible for Shri Tipnis to argue otherwise, though it was faintly contended by him that if the demand is made in pursuance of an order passed by the Government of India reversing the Collector's order, then it is merely an execution of the final order and nothing more. He has also contended that in such cases relevant date will be the date on which the matter is finally decided by the Government of India. However in view of the decisions in the field he did not pursue the matter any further. Therefore, it will have to be held that the demand made by the letter dated 21st April, 1978, is illegal and without jurisdiction and therefore cannot be enforced. However, in the view which we have taken the petitioners are not entitled to refund of the duty already paid.

15. In the result, therefore, this petition is partly allowed, i.e., to the extent that the letter dated 21st April, 1978, and the demand made therein is held to be illegal and without jurisdiction and therefore unenforceable. However, insofar as the main controversy raised in the petition as to whether the petitioner's product falls within the ambit of entry 52 is concerned, it is hereby held and declared that the petitioners' product squarely falls in Tariff Item 52 of the Act.

16. Hence rule is partly made absolute. However, in the circumstances of the case there will be no order as to costs.

17. At this stage an oral prayer for leave to appeal to the Supreme Court is made by Shri Bhaba on behalf of the petitioners. Since, we have decided the controversy raised in this petition on the basis of the well-established principles laid down by the Supreme Court of India itself, we do not find that this is a fit case for grant of such leave. Hence leave refused. Howere, we direct that status quo should be maintained for a period of two months from today.


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