1. A short but interesting question as to what is the meaning of the word 'pump' occuring in Item 30-A of the Schedule to the Central Excises and Salt Act,1944, arises in this case. The petitioner has prayed for a writ of mandamus and/or any other appropriate writ, direction or order under Articles 226 of the Constituion quashing and setting aside the orders of the respondents dated June 16, 1976 and March 31, 1978 and also directing the respondent to the refund the sum, of Rs. 32,74,127.82 paise, being the amount of excise duty which, according to the petitioner, was illegally collected by the respondents and which was paid under protest by the petitioner in respect of sale of accessories effected along with the sale of power driven pupoms where the price of such accessories have been separately shown in the invoices of the petitioner. Teh petitioner has also prayed that the respondents be directed to refund the further amounts which would be so collected during the pendency of this special civil application. The petitioner has also prayed for a permanent injunction restraining the respondents from collecting and/or levying any excise duty under Item 30-A inrespect of sale of accessories along with power drivan pumps where the prices of such accessories have been separately shown in the invoices of the petitioner. In the alternative to the above two prayers, the petitioners has prayed for an order quashing the levy of excis by respondents on sale of power driven pumps without accessories under item 30-A and to further direct the respondents to refund to the petitioner the amount of excise duth collected from march 17, 1972 in respect of such transaction and also to restain the respondents permanently from collecting or levying any excise duty under Item 30-A in respect of such transections.
2.The petitioner is a company registered under the Indian Companies Act and manufactures various types of hydraulic and engneering goods since 1943. Respondent No. 2 is the Assistant Collector having juridiction over the area in which the petitioner is carrying on its manufacturing activities. It manufactures power driven pumps and various accessories of such power deiven pumps and the manufacture of power driven pumps is subjected to central excise duty under Item 30-A of the First Schedule to the Central Excises & Salt Act, 1944. The entry provides:
'Power driven pumps (including motor pumps, turbo-pumps and mono block pump sets) for liquids whether or not fitted with measuring devices...' and the duth is 20 per cent ad valorem. It may be pointed out that Item 30-A was inserted in the First Schedule of the Central Excises & Salt Act by. Finance Act of 1969 and it was inserted in 1969. Though accoding to the Item excise duty at 20 per cent ad valorem was leviable, be a notification also issued simultaneously along with the insertion under the relevant provisions of the Act, complete exemption was granted to power driven pumps from excise duty. On March 15, 1972, the complete exemption was withdrawn and after withdrawal of the total exemption, effective excise duty of 10 per cent could be levied on power driven pumps. On June 17, 1977, excise duty was reduced from 10 per cent and on February 27, 1978, a notification was issued once again granting complete exemption from duty in respect of power dvieven pumps.
3. On March 21, 1972, under the self-removal procedure, the petitioner company submitted a classification list to the excise suthorites and after the clasification was submitted, on May 27, 1972, the Central Board of Customs and Excise issued a clarification refgarding power driven pumps. The query which was put to the Central Board was 'Do power-driven pumps include the prime mover as well as spare parts and other accessories, link pipes, fittings, pressure gauges, volt meters, etc.?' and in reply to this query the Central Board clarified : 'Accessories and pipes and fittings-Since the duty is leviable on the pump only, the question of including their values not arise, if the values of such accessories are indicated separately. However, in the case of measuring devices cleared alon with the pump, the values therof are to be included.' On August 4, 1973, the Assistant Collector partially modified the classification list and he held that the accessories which are in dispute before us were exigible to excise duty under item 30-A. However, the Assistant Collector had not given any reasons in support of his conclusion. Against this decision of the Assistant Collector, the petitioner went in appeal and the Appellate Collector, by his order dated September 25, 1975, allowed the appeal. He set aside the order of the Assistant Collector on the ground that reasons had not been given and he remanded the matter back to the Assistant Collector so that a specaking order might be passed. On June 16, 1976 the Assistant Collector passed the order after remand once again holding that accseeories were exigible under Item 30-A and he held these particular accessories in dispute before us to be parts of pump. The petitioner again went in appeal the order of the Assistant Collectore and by the order dated November 19, 1976, the Appellate Collector allowed the appeal and upheld the contention of the petitioner. This order of the Appellate Collector was not implemented for some time and thereupon, on August 3,1977, the petitioner filed special civil application No. 1100 of 1977 in this Court praying for a writ of mandamus to the Assistant Collector so as to make him comply with the order of the Appellate Collector. On August 18, 1977, notice was issued in Special Civil Application No. 1100 of 1977 of this Court. In the mean-while, on September 20, 1977, the Central Government issued a show cause notice in suo motu revision against the order of the appellate authority. There after is seems that Special Civil Application No. 1100 of 1977 was withdrawn. On March 31, 1978. the Central Government passed the revisional order setting aside the Appellate Collector's order. This order of the Central Government was despatched by the Central Government on May 6, 1978. On July 24, 1978, the present Special Civil Application was filied by the petitioner.
4. The contentions in theis case center round what is known as 'column assembly' ans what is known as 'discharge head assembly'. It is the case of the petitioner that pumps manufactured by them are essentially bowl assembly. they are turbine pumps which work on the principle of building up a pressure head of water by movements of the vanes of the pump either in a verticle or in a horizontal filed. Mostly the pumps work in a vertical filed. These bowl assemblies are suspended from the column assemblies. Through column assembly water passes upward and in the central portion of the column assembly is a hollow tube through which a shaft is passed in order to supply mechanical motion to the vanes of tghe pump in the bowl assembly. the venes operate in the bowl assembly and all the vanes together are referred to as impellers which impel wate assembly are the discharge heads through which water is discharged and passed on to the distribution system and the shaft is moved either by a prime mover which may be an electric motor or any other motor which supplies mechanical energy for the purpose of rotating the shaft. According to the customs authorities, al the three assemblies, namely, bowl assembly which houses impellers, column assembly through which water or liquid goes up, and the shaft is passed for moving the impellers and discharge head assembly, are all parts of a power driven pump, where as according to the petitioner, is is only bowl assembly which houses impellers that is the pump or that is the power driven pump, the rest, namely, the column assembly and discharge head assembly being merely accessories of the pump. Over and above the column assembly and discharge head assembly, there is also a strainer which is fitted at the bottom of the pumping unit so as to strain put weeds and other impurities which might otherwise damage the vance of the impeller in the bowl assembly, There are also lubricating parts which help the machine moving smoothly as a result of lubrication. Sometimes,lubrication is merely by water. Though in the affidavit filed on behalf of ghe Government an attempt has been made to show that even the strainer and lubricating tanks are parts of acessories of a power driven pump, the controversy before us has centered round the column assembly and the discharged head assembly.
5. As regards stainer, it is obvious that strinerwill be required to be fitted if there are impurities in the liquid which is to be pumped. If it is crystal clear water or if there are no impurities,a strainer may not be required at all and therefore a stainer cannot be said to be an essential part of a power driven pump.
6. It is well settled law that in cases like the present one when questions of interpretation opf items or entries in excise schedules arise, the test to be applied is the test of how it will be understood by those who are accustomed to dale with power driven pumps in their ordinary avocations. it is what is known as common parlance test but common parlance of thoses who are familiar with the subject. It may be pointed out that in the course of the proceedings before the excise authorites, the petitioner examined one N.W. Lalchandani as their witness. This witness started life as Professor of Agricultural Engineering. He was then Technical Education Officer, Indian Air Force, Industrial Engineer in Tata Group of Textile Mills, expert in hydraulic machines special designs and manufacturer of pumps, Chairman of ISI, Sub-committee of Vertical Pumps and member for horizontal pumps, leader of Indian deldgation to I.S.O. Conference for screw threads as Vienna, and consultant to various organisations, Machinery, Ltd.,. and Shah construction Ltd. At the time when he gave his evidence before the Assistant collecotr on March 11, 1976, he was Consultant to Haryana Government for design of largest vertical pump in India. He was alos an industrialist.
7. According to Lalchandani, a pump is those parts which are involved in pumping action, that is, conducting liquid from one point to another. According to him, there are three principal parts of pump which constitute a pump, namely, (1) the part which guides liquid to the impeller, (2) impeller which slaps the liquid, and (3) the guide- vanes which straightens the flow. In a vertical pump, these are called suction case, impeller and bowl, totally called as bowl assembly. In horizontal pump is the casing and impeller. Bowl assembly is a pump by itself and it can be installed and worked alone without any accompaniment as a pump, for example, in sewage purification schemes, bowl, assemblies are used as pumps for circulation of sewage. he has pointed out that none of the items mentioned in Appendix A to the show cause notice dated November 13, 1975 forms part of a pump and none of these items are required for completgion fot the manufacture of a pump. A pump can be said to be fully manufactured pump without any of the items mentioned in the above-stated Appendix A. That would be so for both horizontal and verticle pumps. The items in Appendix A are not bowl assembly or the parts thereof and bowl asemblies by themselves function as pumps without any of the items which are mentioned in Appendex A. In his order dated June 16, 1976 which is annexure `A' to the petition in the present proceedingsz the Assistant Collector has set Annexure A to the show cause notice. The petitioner was claiming several parts as accessories and not vertical mixed turbine pumps. At Item 1 in the schedule, the petitioner was claiming that discharge head (oil lubricated). discharge head (water lubricated), column assembly (oil lubricated/ water lubricated, per- lubricating tank, lubricator-manual automatic, suction pipe, strainer and depth indicating device, were all accessories and in the case of verticle mixed flow pumps, the petitioner was claiming that discharge head or skirt-oil-lubricated/water-lubricated, column assembly, oil lubricated/water-lubricated, lubricator-mannual/automatic and stainer, were all accessories. the other accessories which are referred to in the order of the Assistant Collector, Annexure `A' to the petition, are not in controversy before us, we are only concerned with the accessories in connection with verticle turbine pump and vertical mixed flow pumps which are the main items manufactured by the petitioner company, though th epetitioner does manufacture other types of pumps as well. It is to be borne in mind that, apart from the evidence of Lalchandani, reliance was placed on behalf of the petitioner on several text books and standard books in connection with manufacture of pumps. In the book called 'Impeller Pumps' by Stephen Iazarikewicz and Adam I. Troskolanski in the introduction portion setting out the fundamental defination, it has been pointed out that pumps are machines used for lifting liquids from a low level to a high level or for delvering liquids froma region of low pressure to one of high pressure. they could also be used for pumping liquid from a higher level to a lower one through a long pipe line or one of very high hydraulic resistance, e.g. through oil pipelines. They operate by creating a pressure difference between the suction side and the delivery side of the moveing element (piston, impeller) of the pump. A pump transfer machanical energy from some external source to the liquid flowing through it. The pump thus increse the energy of the liquid which may then be used to lift the liquid and to overcome the hydraulic resistance of the delivery pipe. From the energy point of view, pumps are the reverse of hydraulic motors, which convert the energy of the liquid into machanical work, pistom pumps corresponding to piston type hydraulic motoresd and rotodynamic pumps to hydraulic reaction turbines. An arrangement consisting of a suction pipe, p;ump and delivery pipe is called a pumping system. A set pumps working together is called a pumping installation. A room or building together with the pumps installed in it, is called a pump house ans an enterprise which pumps water for water supply a pumping station. In the book called 'Centrifugal and Axial Flow Pumps' by A.J. Stepanoff, at page 19 are the defintions ans terminology and in the introduction portion in Chapter 21, it was been pointed out :
'Centrifugal pumps comrise a very wide class of pumps in which pumpinf of liquids or generation of prfessure is effected by a rotary motion of one or several impellers. In the early stage of centrifugal pump development, pumping was ascribed to certrifugal forces. Later this class of pumps was extended to include axial flow pumps, ans the conception of the entrifugal section of the impeller was inadequate to explain the operation of axial flow pumps. However, treatment of axial flow pumps as a class by themselves was not justified, because hydraulically they represent one extreme of a continuous series of pump types. This continuity applies to both theoretical treatment and design methods. Some intermediate types are called mixed flow pumps. In these, the flow through the impeller has both redial and axial components and the impeller resembles a ship propeller'.
In 2.2 of Chapter II of this book, it was been pointed out :
'Every pump consists of two principle parts: an impeller, which forces th eliquid into a rotary motion by impelling action, and the pump casing, which directs the liquid to the impeller and leads it away under a high pressure. The impeller is mounted on a shaft which is supported by bearings ans driven through a fiexible or rigid coupling by a driver. The pump casing includes suction and discharge nozzles. Supports the bearings, and houses the rotor assembly. the casing has to be packed around the shaft to prevent external leakage. Closely fitted rings, called wearing rings, are mounted on the impeller and fitted in the casing to restrict leakage of high-pressure liquid back to the pump suction. Liquid is directed to the impeller eye by the suction, nozzle and is brounght into a circular motion by the impeller vanes. The impeller vanes ans impeller side walls, or shrounds, from the impeller channels.'
8. Mr. Vakil for the respondents has very strongly relied upon the words in paragrph 3.1 'A typical vertical turbine pump consists of three elements' and he contende that column assembly and head assembly or what has been referred to ass dischared head assembly are both eements of a verticle turbine pump.
These are all teh technical data and technical literature to which our attention was drawn in the course of arguments before us. Mr. Vakil contended that aplying the common parlance test in the instant case, the bowl assembly, coulumn assembly and discharge head assembly are all part of a pump and when a customer goes to a dealer asking for a turbine pump or vertical turbine pump, he will have to be supplied with all the tree elements of the pump, namely, bowl assembly, column assembly and discharged head assembly. As against this, it has been pointed out, both from the evidence of Lalchandani and from the petition itself that on several occasions, a bowl assembly onlyis supplied to be installed because, essentially, the action of the pump which is to shifts water from an area of low pressure to an area of high pressure by creating pressure is performed by the bowl assembly itself. The rest merely guide water further up after it comes out from the bowl assembly to the point where water is fed into the distribution system. It has also been pointed out by Mr. Kaji from the petition that for part of sewage system even of Nangal Fertilizer Factory, only bowl assembly is supplied as pump for the purpose of that factory without column or discharge head assembly.
9. To us it seems that applying both the technical aspect and common parlance aspect, once the real function of a pump os understood, the whole problem before us could be very easily solved. the function of a pump os to shift or to lift liquid in question from one point to another, or from a lower point to a higher point. But in each case, by the roating action of the shaft and the impellers, mechanical energy is converted into kinetic energy of the liquid and liquid is forced out by great pressure from the pump itself. So far as column assembly and discharge head assembly are concerned, they merely enables water to pass out from the bowl assembly and they enable the shaft to supply rotary action to the vanes of the impellers so far as column assembly is concerned. The discharge head merely keeps the bowl assembly and column assembly suspended at the appropriate depth so that liquid could be forced out. Under tghese circumstances, it is obvious that what is driven by the power are the parts of the bowl assembly, not the column assembly which remians purely stationary, or the discharged head assembly which merely keeps column assembly and the bowl assembly suspended bwlow the dicharge head assembly.
10. there os another aspect also from which this question can be considered,and it is supplied by the book 'An Introduction to Engineering Fluid Mechanies' which points out that a turbine is exactly the reverse of a turbine which generates electricity. It is well-known ans common knowledge that in a hydraulic power generating system, water stored in a reservoir at a great height is allowed through penstock pipes to the turbine and pressure of water at great head of pressure moves the turbine and kinetic eneray of the water is converted into mechanical energy by the turbic and that mechanical energy is fed into the generator which creates electrical energy. In a verical turbine pump, the reverse process is followed. If the power is supplied by electricity, the electric motor converts the electrical energy into mechanical energy which is imparted through th eshaft to the vanes of the impellers and the vanes of the impellers convert the mechanical energy into kinetic energy of water whichmoves up under pressure built up by the impellers. So for as hydro-electric system is concerned it would bne futile to call penstock pipes or reservoir as turbine. A turbine is merely that part which moves under the impact of water when water is under greart pressure. In the reverse process of a turbine pump-it may be a verticle or amixed pump-what happens is that it is the impellers action which converts mechanical energy of the shaft supplied through the dlectroc motor into kinetic energy, and equally it would be futile to asy that th ecoumn assembly through which water passes up or out, and the dicharge head from which the column assembly discharge water, are pumps or are essential parts of a pump. the esential parts of a pump in all such cases like the essentali parts of a turbine are the moving parts which convert energy of one kind into another kind of energy, kinetic energy into mechanical energy so far an turbine is concerned, and mechanical energy into kinetic energy of the liquid so far as pump is concerned.
11. Considering the question from another angle, it seems to us from a common sense point of view that if a pump goes out of order for some reason or another and has to be replaced, it will only be the bowl asembly which would be replaced or rejected and not the column assembly nor the discharge head assembly. If a customs wants his pump to be replaced, he will not ask for the column assembly to be replaced for the discharge head asembly to be replaced because they will remain as they asr. It is only the bowl assembly which contains moving parts which be required to be repaired from time to time or replaced from time to time, the rest of the things remaining as they are, unless the bowl asembly pipes or the casing have reusted or some action takes place. But so far as a power driven pump is concerned it is only the bowl assembly which houses the pump, namely, the impellers with their vanes which pump water or pump out the liquid, as the case may be, without the column assembly or the discharge head assembly contgribution anything to the pumping out action of the pump or the pumping up action, so far as the liquid to be pumped u; or pumped out is concerned.
12. mr. Vakil for the respodents contende that when there are two possibe meanings of the word 'pump' one which is contende for by the petitioner and the other which is referred to by the excise authorities, each of which meanings is possible, the High Court acting under its juridiction under Articles 226 should not interfere by preferring one menaing to another. In our opinion, there are no two menaings possible so far as a power driven pump is concerned. What is exempted is accesories of a power driven pump and what is excisable is the power driven pump. thereis only one meaning of 'power driven pump', namely, the bowl assembly of the types of the pump before us. Under these circumstances, this contention of Mr. Vakil cnanot be accepted. In Lachandan's evidences particularly the common parlance or commerce parlance from the point of view of persons familiar with the subject matter, has emerged, and it is clear from his evidence which we have reproduced completely in the earlier part of this judgment, that to person in the trade who know about the subject, it is only the bowl assembly which constitutes thepump so far as the pumps manufactured by the petitioner are concerned.
13. Mr. Vakil contended that if the function of apump is to lift up liquids from a lower level to a greater level, all the parts of lift the liquid to the highest point of lift should be considered as parts of the pump itself. But to us, this arguments is an argument somewhat semantic because the clear concept is that the pump's function is to build up pressure and to convert mechanical energy into kinetic energy of the liquid and if that is essentailly the function of a pump, only the bowl assembly which performs that function shoudl be considerd to be pump, particularly power driven pump in the context of Item 30-A
14. It may be pointed out that in the context of sales-tax law, the question arose before tghe Supreme Court in Annapuran Carbon Industries Co. v. State of Adhra Pradesh, 37 S.T.C. 378, as to what is the meaning of 'accessories'. In that particular case, the entry in the Andhar Pradesh General Sales Tax Act, 1957, was as follows : 'Cinematographic equipment, including cameras, projectors,and sound recording and repoducing equipment linmes films and parts and accessories for use therewit'. And Beg J. as he then was, speaking for th eSupreme Court has observed at page 381 of the report :
'We find that the term `accessories' is used in the schedule to describe goods which may have been manufactured for use as an aid or addition. A sense in which the word`accessory' is used is given in Webster's Third New International Dictionary as folows: `an object or device that is not essential in itself but that adds to the beauty, convenience, or sffectiveness of somthing else'. Other meanings given there are:`supplementary or secondary to something of greater or primary imporance'; `additional'; `any of several mechanical devies that assist in operating or controlling the tone resounces of an organ'.Accesories' are not necessarily or controlling the tone resource of an organ'. `Accessories' are not necessarily confined to particular machines for which they may serve as aids. the same item may be accessory or more than one kind of instrument.'
In Srirama Engineering Co. v. The State of Andhra Pradesh, 40 S.T.C. 136, at page 139, a Division Bench of the Andhra Pradesh HighCourt has dealt with what is the meaning of 'accesdsories'. They have observed at page 139:
'According to the dictionay meanings, an accessory is comthing which contributes in a subordinate degree to a general result or effect. In other words, it is somthing extra added to help in a secondary way. It is also an object or device that is not essentail in itself but that ades to the beauty, convenience or effectivenss of something eles.'
Thus, both accoridng to the menaing ascribed to the word 'accessories' by the Supreme Court and by the Division Bench of the Andhra Pradesh High Court, with which we respectfully agre, an accessory is an object or device that adds to the effectiveness of somthing else. The column assembly and the discharge head assembly contribute to the effectiveness of the bowl assembly in the instant case, buyt they are not performing essential function of a power driven pump, namely, buliding up pressure in the liquid. That esential function is performed only by the impellers which are housed in the bowl assembly. It may be pointed out , as has been implicit in this case, that though there are several entries in the Schedule to the Excises Act like Items 29-A, 30, 31, 33-A where parts of machineru are dealt with or parts of accesories are dealt with for example in entry 34-A parts of motor vehiles and tractors are dealt with and in entry 37-A parts and accessories of gramophones, record-players, etc. driven pumps in entry 30-A. Entry 30-A deal only with poer driven pumps.
15. Under these circumstances, once what a power driven pump is supposed to do is properly understood, it is obviousthat column assenbly and the discharge head asembly and other objects referred to in th eorder dated items 1 and 5 as those which are clkaimed as acessorties by the petitioner, are in fact accesories because none of those objects performs the esentail function of converting mechanical energy of the impeller into kinetic energy of the liquid in quesxtion. Hence, the order of the Assistant Collector dated June 16, 1976, and the order of the Central government in revision dated march 31, 1978, both proceeded on wrong fooring altogether, when they treated the column assembly and the discharge head assembly as components or essential elements of power driven pumps manufactured by the petitioner. It is obvious that all those parts which were named as accesories by the petitioner were not performing the essential function of converting mechanical energy into kinetic energy of the liquid and therefore those parts which wer4e claimed as acessories by the petitioner as shown in the order of June 16, 1976, were in fact accesories. hence this special civil application is allowed and the orders dated June 16, 1976 and march 31, 1978 respectively passed by the second and the third respondents are quashed ans set aside. The amount of Rs. 32,74,127.82 paise and other amounts of excise duty collected in respect of such accessories during the pendency of this petition are directed to be refunded to the petitioner, this amount being the amount of excise duty collected by the respondents and paid under protest by the petitioner in respect of sale of accessories effected along with the sale of power driven pumps when the prices of such accessories had been shown separately in the invoices of the petitioner.
16. In the cases of Processing Houses, Special Civil Application Nos. 1552 of 1977 and 1553 of 1977 and Batch decided by a Division Bench of this Copurt on January 24, 1979, we have ordered that interest at twelve per cent annum should be paid in all case where the money was illegally collected by the excise authorites from the citizens.The same principle will apply in this case also and the respondents are directed to refund the above mentioned amounts with interest at twelve per cent from the respective dates when the amounts were collected from the petitioner. In view of what we have observed, it necessarily follows that th erespondents should be permanently restrained by a writ of mandamus fron this Court from collecting or levying any excise duty under Item 30-A in respect of sale accessories in the sense of accessories explained in the course of this judgment, where prices of such accessories have been separately shown in the invoices of the petitioner. The respondents will pay the costs of this special civil aplication to the petitioner. Rule is made absolute accordingly.