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Svadeshi Mills Company Ltd. Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 133 of 1978
Judge
Reported in1982(10)ELT237(Bom)
ActsCentral Excises Act, 1944; The Limitation Act, 1963; Madhya Pradesh General Sales Tax Act, 1958
AppellantSvadeshi Mills Company Ltd.
RespondentUnion of India and Others
Excerpt:
.....same commodity - while passing impugned order excise department not made any distinction between glass and glassware - windscreen governed by word 'glass' and not by word 'glassware' in entry 23a (4) - petition allowed as windscreen liable to be charged with duty under entry 34a and not entry 23a. - - it is not in dispute now that initially the department accepted this position, namely, that the windscreen manufactured by the petitioner-company was a motor part and as such no duty was payable on the same having regard to the above mentioned notification dated 1st march, 1979. this fact is clear from the licence issued by the department under the excise rules, 1944, dated 7th april, 1979. the licence clearly shows that according to the department the windscreens manufactured by the..........were made subject to excise duty at the rate of 20% ad valorem. the said entry enumerated various motor parts which were made subject to duty at the rate of 20% ad valorem. if the entries stood by itself and if windscreen was considered to be a motor part (which is the principal question to be decided in this petition) the petitioner-company would have been liable to pay duty on windscreen at the rate of 20%. but by a notification issued contemporaneously, notification no. 76/79-c.e., dated 1st march, 1979, it was provided that those motor parts which were not enumerated in the said entry 34a were exempt from the excise duty. the result was that if the windscreens were to be considered as motor parts, the petitioner would be exempted from paying any excise duty on the said article.....
Judgment:

Sharad Manohar, J.

1. By this writ petition the petitioners who are the manufacturers of automobile-windscreens, serving as parts and accessories of Motor Vehicles, are calling in question the validity and legality of the order passed by respondent No. 4, the Assistant Collector of Central Excise, Pune, by which order respondent No. 4, upon advice of the Central Board of Excise and Customs has held that the windscreens manufactured by the petitioner-company are liable to be charged with duty under entry No. 23A of the Central Excises and Salt Act, 1944 and not under entry No. 34A thereof which deals with motor vehicles parts and accessories.

2. The facts that have been referred to in the petition are several but it is really unnecessary to refer to each of them in this judgment. It is enough to state the few relevant facts which are as follows :

As stated above, the petitioner-company manufactures automobile windscreens, both flat and curved, and sells them as parts and accessories of motor vehicles. There is no dispute that till 28th February, 1979, having regard to the notification issued by the Central Board of Excise and Customs, respondent No. 2 herein (hereinafter referred to as 'the Board') windscreens were exempt from excise duty since the duty was paid on the glass from which they were manufactured. In March 1979, article 34A was inserted in the excise tariff on account of which motor vehicle parts Tractors and Trailors were made subject to excise duty at the rate of 20% ad valorem. The said entry enumerated various motor parts which were made subject to duty at the rate of 20% ad valorem. If the entries stood by itself and if windscreen was considered to be a motor part (which is the principal question to be decided in this petition) the petitioner-company would have been liable to pay duty on windscreen at the rate of 20%. But by a notification issued contemporaneously, Notification No. 76/79-C.E., dated 1st March, 1979, it was provided that those motor parts which were not enumerated in the said entry 34A were exempt from the excise duty. The result was that if the windscreens were to be considered as motor parts, the petitioner would be exempted from paying any excise duty on the said article manufactured by them. It is not in dispute now that initially the Department accepted this position, namely, that the windscreen manufactured by the petitioner-company was a motor part and as such no duty was payable on the same having regard to the above mentioned Notification dated 1st March, 1979. This fact is clear from the licence issued by the department under the Excise Rules, 1944, dated 7th April, 1979. The licence clearly shows that according to the department the windscreens manufactured by the petitioner-company were 'parts and accessories of motor vehicles falling under Tariff Item No. 34-A'.

3. It appears, however, that the department had a second look at the provisions of the Act and while doing so their attention landed upon entry No. 23A of the tariff. The entry originally stood as follows :-

------------------------------------------------------------------------'23A. GLASS AND GLASSWARE -(1) Sheet glass and Plate glass Thirty per cent ad valorem.(2) Laboratory glassware Ten per cent ad valorem.(3) Glass shells, glass globes Fifteen per cent ad valorem.and chimneys for lamps andlanterns.(4) Other glassware including Thirty per cent ad valorem.'tableware.-----------------------------------------------------------------------

This entry 23A was amended by the Finance Bill with effect from 1-3-1979 and amended entry No. 23A ran and continuous to run as follows :-

-----------------------------------------------------------------------'Tariff Rate of dutyItem No. Description of goods ------------------------------Basic Special Excise-----------------------------------------------------------------------23A. Glass and Glassware -1. Flat glass 35% Adv. 5% of the basicduty chargeable.Explanation :- 'Flat glass'includes sheet glass, wired glassand rolled glass whether in theform of place glass, figured glassor in any other form.2. Laboratory glassware 10% Adv, - do -3. Glass Shells, glass globes & 15% Adv. - do -chimneys for lamps andlanterns.4. Other glass and glassware 35% Adv. - do -including tableware.Explanation :- This item does notinclude electrical insulators orelectrical insulating fittings orparts of such insulators orinsulating fittings.------------------------------------------------------------------------

Although this amendment is prior to 7th April, 1979, when the licence was issued by the department to the petitioner considering that windscreens manufactured by them were parts and accessories of motor vehicles, nobody from the department thought that the said amended entry 23A could have any application to the articles namely on the windscreens manufactured by the petitioner-company. But it appears that some brain-wave hit some officers of the department who were able to persuade themselves to take the view that the windscreen was better regarded as 'other glass' within the contemplation of the said amended entry 23A than a motor-part within the contemplation of entry 34A. It is unnecessary to set out the various requisitions made by the department upon the petitioner-company in that behalf. It is enough to state that by their letter dated 28th August, 1979, the Superintendent of Central Excise, respondent No. 5, herein called upon the petitioner-company to take a licence under the Act for the purpose of manufacture of windscreen under Item No. 23-A(4), evidently on the ground that according to the respondents windscreen bore the character of 'other glass and glassware including tableware' chargeable with 35% duty ad valorem. The petitioner-company did not accept this interpretation by the respondents relating to either of the said entries 23A or 34A and hence some correspondence ensued. One piece of the correspondence may be referred to here. By its Trade Notice No. 240 of 1979 dated 10th January, 1980, the petitioner-company was informed by the Assistant Collector, Central Excise that 'special articles of glass like mirrors, Laminated safety glass, Toughened glass, Flat and Curved safety glass (Toughened safety glass like windscreens, door screens and backscreens) etc., irrespective of their end-uses would merit classification under Item No. 23A(4) of the Central Excise Tariff.' The petitioner has averred in the petition that in this connection the Assistant Collector, respondent No. 4, herein has sought for an opinion or advice from the Board and the view taken by the Assistant Collector was approved of by the Board. The result was that by its letter dated 21st January, 1980, the Assistant Collector implicitly informed the petitioner-company that the view of the department reflected in the Trade Notice No. 240/1979 referred to above stood confirmed and the Petitioner Company was called upon to approach the Superintendent, respondent No. 5 herein for the purpose of obtaining the excise licence under tariff entry No. 23A(4) and to follow the other requisite procedure for the purpose of manufacturing the goods. These averments made in the petition have not been denied and it is common ground before me that the above-mentioned Trade Notice No. 240 of 1979 reflects the view of the department relating to the petitioners' liability pertaining to the excise duty. The petitioner-company, therefore, applied for the licence as directed under protest and filed the present petition challenging the validity of the view taken and order passed by the respondents requiring the petitioner-company to pay the excise duty on the commodities namely the windscreens manufactured by them as per entry No. 23A of the Central Excise Tariff.

4. The questions that therefore fall for consideration are :-

(a) Whether the windscreens manufactured by the petitioner-company answered the description of motor parts and/or accessories or not ?

(b) Whether the windscreens which are made up of glass can be said to be governed by entry No. 23A(4) which refers to excise duty payable on 'other glass and glassware including tableware' ?

5. The contention of the petitioner-company is that in the first instance the department itself had provisionally recognised the fact that windscreens manufactured by them were motor parts and such entry No. 34A of the Central Excise Tariff specifically applied to the said commodity. The contention is that since said entry No. 34A is a specific provision no question would arise of the application of entry No. 23A(4) which was after all general provision relating to glass and glassware.

6. The contention of the department on the other hand is that what is manufactured by the petitioner-company is an article from glass and nothing else. All that the company has done, according to the department, is that raw material of glass which is received by the company is curved and cut into sizes suitable for windscreens. The contention is that windscreen did not cease to be glass merely because by certain process firstly it is flattened or curved and secondly toughened with a view to have a flat or curved windscreens, that the ultimate commodity continued to be glass and that there is nothing in Item No. 23A(4) which would exclude from the category of 'glass' articles which have been cut to sizes and are used ultimately for certain specific purpose. The contention further is that windscreen after all constitutes end use of the glass and that the end use of the glass has no relevance while charging the duty.

7. To our mind the petitioners contentions in this petition have got to be accepted and the contentions advanced by the department are devoid of any merits. In the first place even on first principle the contention advanced by the department is not acceptable. Moreover, secondly, to our mind, the question is no longer res integra. The principle underlying the question has been already settled by a series of authorities, both of this Court as well as of the Supreme Court, apart from of various other High Courts. As will be presently pointed out the department has really no justification to indulge in the niceties and technical distinctions and hence the consequent order passed by the respondents concerned has got to be quashed.

8. In this connection the basic principle that has to be borne in mind is that the commodity which is the subject matter of the excise duty is something different from the raw material from which the same has been manufactured. It may be noted, and there is no dispute about this fact, that the material used for the manufacture of windscreens is glass and the manufacturers of glass from whom the petitioner-company has purchased the glass as raw material for manufacture of windscreens have already paid excise duty upon the glass manufactured by themselves which they have sold to the petitioner. From the raw material of glass received by the petitioner-company a different commercial commodity is brought into being by the Company. In other words the glass is raw material which is processed into an entirely different commercial commodity by the petitioner-company and it is this different commercial commodity which is to be subjected to excise duty. This ultimate commercial commodity is something manifestly different from the raw material from which it is manufactured. If this was not so and if it was to be held that windscreen continued to be glass and hence continued to be governed by Item No. 23A(4) the preposterous result would be that the same commodity would be subjected to excise duty twice. Without entering into the question whether such double taxation would be permissible or not, it can be safely said that the legislature never contemplated such a double taxation on the same commodity by way of excise duty while providing for the excise tariff. The fallacy of the departmental reasoning lies in the fact that the raw material from which the final product is manufactured equated with the final product itself.

9. Mr. Sethna, the learned Advocate appearing for the respondents, conceded before us that windscreen was a motor part. But it may be stated that his concession was a qualified concession. He contended that so far as motor parts were concerned, they were numerous in number. But even though the windscreen was a motor part it continued to be 'glass' and hence entry 23-A(4) must be held to be the specific provision so far as excise duty payable for windscreen was concerned. To our mind this contention is fallacious. We will presently point out that if at all there arose a question as to between the two entries namely 23-A(4) and 34-A which is the specific entry vis-a-vis windscreen, we would have had no hesitation in holding that it is entry No. 34A which is the specific entry and not entry No. 23-A(4). But apart from this question of specific and generic entry, to our mind the question has got to be approached more from practical and commercial point of view and not from theoretical or academic point of view. As will be presently pointed out, various Courts have held time and again while identifying the subject matter of the entries in the excise tariff for the the purpose of ascertaining the duties chargeable for excise, recourse is to be had to the understanding of the commercial community as regards the articles in question. To take the instance of the very commodity namely windscreens, the test to be applied is as to whether windscreens could be purchased from a glass or glassware shop or whether it could be purchased from dealers in motor parts only. In this connection we may state that the petitioner company has filed as many as four affidavits in support of the averments made in the petition and out of the four deponents, three deponents have deposed that in automobile industry windscreen is understood to be a part of automobile and it is not referred to as glass or glassware in commercial parlance. The first affidavit to that effect is filed by Swarup Singh who is in the employment of M/s. Tata Engg. and Locomotive Co. Ltd. (TELCO). The second affidavit to the similar effect is filed by Juzer Gari, who is a partner of M/s. City Glass Centre. He deals in automobile spare parts and as a spare parts dealer he stocks automobile windscreens both flat as well as cured. He has sworn on oath that windscreens are known and recognised in the automobile trade as parts of automobile and that windscreens are neither known nor recognised as glass or glassware or tableware. Similarly there is the affidavit filed by one N.S. Kachawala who is partner of M/s. Poona Glass Depot. He is a general glass merchant and a dealer in glass products like, sheet glass, figured glass, mirrors, cut glasses etc. He has deposed in his affidavit that although he purchases and sells all varieties of glasses and glassware, he never either stocks or sells windscreens although apparently windscreens are also made of glass. It is significant that the statements made in the above mentioned three affidavits have not been controverted or contested by the respondents by filing any reply affidavit in that behalf.

Moreover, at the time of the hearing Mr. Sethna the learned Counsel appearing for the department fairly stated that if he walked in a glass or glassware shop he could not purchase an automobile windscreen. It is therefore, clear that in commercial parlance windscreen is an entirely different commercial commodity identified independently from glass or glassware.

10. Both the sides heavily relied upon Brussels Nomenclature in support of their contention and hence it is worthwhile making a reference to the same at this stage. In Volume 4 of the explanatory notes to the Brussels Nomenclature parts and accessories of the motor vehicles are commented upon. The main test in this behalf is to be found in para 87.06 at page 1500 (Volume 4), which runs as follows :

'This heading covers parts and accessories of the motor vehicles falling within heading 87.01, 87.02 or 87.03, provided that the parts and accessories fulfil both the following conditions :

(i) They must be identifiable as being suitable for use solely or principally with the above mentioned vehicles, and

(ii) They must not be excluded by the provisions of the Notes to Section XVII (see corresponding General Explanatory Note).'

Further in the same para 87.06, it is mentioned in sub-para B that parts of bodies and associated accessories are classified in the present heading that is to say in the heading of parts and accessories of the motor vehicles and the parts and accessories which are enumerated by way of illustration include windscreens. It is thus clear that even according to the Brussels Nomenclature windscreen cannot be anything but a motor part.

If we turn to Volume No. 2 of the Explanatory Notes of the Brussels Nomenclature relating to safety glass consisting of toughened or laminated glass in para 70.08 at page 927, the position stated is as follows :

In the said para 17.08 characteristic of toughened glass and laminated glass are describe. The various uses of the toughened and safety glasses are pointed out therein and thereafter it is stated in the notes as follows :

'Because of these qualities these glasses are used in motor car windscreens and windows, in doors, in ships, portholes, in protective goggles for industrial workers and drivers, and for eye pieces for gas masks and divers' helmets. Bullet proof glass is a special type of laminated glass.'

There is another significant position pointed out in the explanatory notes which reads as follows :

'However, curved safety glass having the character of clock or watch glasses or of a kind used for sub-glasses is classified in heading 70.15. Safety glass incorporated in other articles and thus in the form of parts of machines, appliances or vehicles is classified with those machines, appliances or vehicles; similarly goggles containing lenses of safety glass fall within heading 90.04.'.

Reading the two notes, relating to motor parts and safety glass respectively, together, it cannot be concluded that the established nomenclature recognises windscreen to be a part of motor vehicle. This cannot but mean that it must be governed by entry 34-A directly. If that is so, it must follow that the entry 23-A(4) relating to glass in general cannot be invoked. In between the two entries entry No. 34A is direct and specific entry and hence it must exclude the general entry, i.e. entry No. 23-A.

10. Mr. Sethna, however, advanced two-fold arguments before us to support the view taken by the department. His first contention was that amendment of entry 23-A(4) showed that glass was something which was distinct from glassware. According to him, glass as such was not previously governed by entry 23-A(4), but glass started being governed by the same only by virtue of the amendment and, according to him, glass as distinguished from glassware was wide enough to include everything made of glass which was not glassware. He contended that windscreens were nothing but glass and they were not glassware and hence they were governed by entry 23-A(4).

To our mind, answer to this argument is in the form of the same proposition as the one we have already referred to above. We have to take into account general understanding of the commercial community in respect of the particular word used by the excise tariff for denoting or identifying the relevant article. We have already found that windscreen is not considered to be mere glass by the commercial community. Windscreen will not be available with a dealer in glasses. If that is so it is futile to contend that the mere fact that glass was added to the commodities which were subject matter of the article 23-A(4) even the windscreen which was previously governed by article 34-A started being governed by entry No. 23-A(4).

Mr. Sethna's second line of argument was based upon the observations in explanatory notes to the Brussels Nomenclature, Volume 4, at page 1471. He particularly relied upon para (C) at page 1471 which states that parts and accessories, even if identifiable as for the articles of this section, are excluded, however, if they are covered more specifically by another heading elsewhere in the Nomenclature. Relying upon these observations Mr. Sethna contended that the commodity windscreen must be deemed to be excluded from the category of articles contemplated by entry 34A in view of the fact that commodity glass is included specifically in entry No. 23A(4). To our mind the proposition needs just be stated to be rejected. What para (C) at page 1471 of the Brussels Nomenclature (Volume 4) means is that even in respect of spare parts the generic entry relating to motor part would not apply if a particular motor part was provided in some other entry. By no stretch of imagination it could be said that the entry 23-A(4) specifically provided for motor windscreens.

11. We have referred to the basic principles underlying this question. If any authority is required for the same it could be found in a series of judgments of various courts including the Supreme Court. It is really unnecessary to set out all of them here but we may mention the judgment of the Supreme Court in M/s. Indo International Industries vs . Commissioner of Sales Tax, Uttar Pradesh, reported in : 1981(8)ELT325(SC) , wherein it was observed by the Supreme Court in para 4 of its judgment as follows :

'It is well settled that in interpreting items in Statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them. If any term or expression has been defined in the enactment than it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavtar Budhiprasad, etc. v. Assistant Sales Tax Officer, Akola, : [1962]1SCR279 the question was whether 'betel leaves' fell within item 'vegetable' so as to earn exemption from sales tax and this Court held that word 'vegetable' had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did not comprise betel leaves within it and therefore, betel leaves were not exempt from taxation. In Commr. of Sales Tax, Madhya Pradesh v. Jaswant Singh Charansingh, : [1967]2SCR720 the question was whether the item 'coal' under Entry I of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or not and this Court observed thus : 'Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well settled that while interpreting items in statues like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.' Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal', and held that 'charcoal' fell within the concerned Entry No. 1 of Part III of Schedule II of the Act.'

12. It is true that the above mentioned judgment related to interpretation of word 'glassware' and it was held that clinical syringes could not be considered as 'glassware' falling within Entry No. 39 of First Schedule of the relevant Sales Tax Act. We may state here that while passing the impugned order the department has not made any distinction between glass and glassware as such and it appears that according to the department the commodity in question, namely the windscreen, answered the description of glass and/or glassware. However it was specifically stated before us by Mr. Sethna, in all probability because of the above judgment in the Indo International Industries' case, that windscreen was governed by the word 'glass' and not by the word 'glassware' in entry No. 23A(4). To our mind, however, that does not make any distinction in principle whatsoever and to our mind the above mentioned Supreme Court ruling applies with equal force to the present case.

13. In the result, this petition succeeds and the Rule is made absolute by quashing the setting aside the impugned decisions and determinations firstly the one dated 4th June, 1979, a copy whereof is annexed to the petition as Exhibit D-a, secondly the one dated 28th August, 1979, a copy whereof is annexed as Exhibit D-2 to the petition and thirdly the one dated 21st January, 1980, a copy whereof is annexed as Exhibit 'D' to the petition as also the Trade Notice No. 240 of 1979, dated 10th January, 1980, a copy whereof is annexed as Exhibit 'C' to the petition in so far as they relate to automobile windscreens, flat and curved.

After filing this writ petition the petitioners had applied for an interim injunction restraining the respondents from collecting the excise duties under said Tariff Item No. 23A(4). As a condition for granting the interim injunction the Court had required the petitioners to give a guarantee of a Nationalised Bank. As the petitioners have succeeded, the said guarantee shall stand discharged.

The respondents shall pay to the petitioners the costs of this petition.


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