S.B. Majumdar, J.
1. A short but interesting question in the present petition is whether the goods manufactured by the petitioner-company, namely, wired glass, figured glass, rolled glass, coloured figured glass, coolex figured glass and coolex wired glass belong to the category of sheet glass, and whether they are liable to be subjected to excise duty under tariff item 23A(l) of the First Schedule of the Central Excise and Salt Act, 1944, hereinafter referred to as 'the Act.'
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9. Now the main contention of Mr. C.T. Daru, the learned Advocate appearing for the petitioner-company, is that the disputed items of glass manufactured by the petitioner-company can by no stretch of imagination be considered to be sheet glass and consequently tariff item 23A could never apply to these items. It was contended by Mr. Daru that figured glass, rolled glass, wired glass, coolex figured glass, coloured figured glass and coolex wired glass manufactured by the petitioner-company are different from sheet glass and plate glass ; that in general commercial parlance these goods are never treated as sheet glass and have well understood differences as known in the market. It was submitted that general public who have to deal with these items in open market do not call these items as sheet glass. In order to substantiate this contention evidence was led before the departmental authorities. But the said evidence was brushed aside as irrelevant and 'off the rail'.
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13. Mr. Daru has contended that the Indian Standard Institution has prepared a glossary of terms relating to glass industry. The said glossary has been brought about after common deliberations of the participants like the Council of Scientific and Industrial Research, Hindustan Pilkington Glass Works Ltd., All India Glass Manufacturers Association and others. In the said glossary, published in February 1962, it has been clearly mentioned that Flat glass is a general term covering sheet glass and various forms of rolled glass such as plate glass, figured glass and wired glass. It would be apparent that the general term is shown as flat glass which is mentioned as comprising of all glasses which are flat in appearance. But flat glass would consist of various forms such as rolled glass, sheet glass, figured glass and wired glass. Similarly the word 'sheet glass' is also defined as meaning flat glass made by blowing or drawing. Wired glass is also defined as meaning flat glass with embedded wire mesh, square or hexagonal. Wired glass With embedded square mesh is called Georgian. Similarly, figured glass is shown to be flat glass having a pattern on one or both surfaces. It would be apparent from these various meanings assigned to these various phrases in the aforesaid glossary that flat glass is a general term covering various forms of other different types of glass. It is this glossary which has assigned various meanings to different types of glass and is required to be given the utmost weight as observed by the Supreme Court in (Supra) This glossary is an authentic piece of evidence on the subject matter of controversy.
23rd November, 1978
14. There was evidence before the departmental authorities as to how these items of glass were understood in common parlance and in the commercial market by persons conversant with the matter. The petitioner examined one K.D. Shah before the departmental authorities and in addition to K.D. Shah, they examined two witnesses - D.K. Patel and A.K. Roy. Out of these witnesses K.D. Shah was an independent witness, having business dealings in goods which were the subject matter of dispute in the present case. He was aged 71 and was a businessman from Ahmedabad In his deposition he stated that he was doing the business of buying and selling sheet glass, figured glass, wired glass, coolex wired glass, laminated glass, toughened glass, and such material. He was doing the said business for the last 30 years. He further stated that he knew all the types of glasses and they are different from each other and known by different names and were known to be distinctly different from each other in the market. He also stated that these glasses have different characteristics, uses and prices. Each type of glass is a different article from others and known by different name and sold and bought at different price in the market by all persons in this trade all over India. He further stated that so far as plate glass is concerned, it was different from the glasses stated above and it was not manufactured in India and was imported from foreign countries. This witness offered himself for cross-examination but the departmental authorities did not think it fit to cross-examine him. Now the evidence of this witness was very material for the test of the commodity being known in common parlance and commercial world but surprisingly enough this evidence has been brushed aside by the Assistant Collector by a cryptic observation that all that was stated by the witness was off the rail. The same is the evidence of other two witnesses but as they were employees of the petitioner-company we do not advert to their version but the fact remains that the evidence regarding the treatment of the disputed goods by persons conversant with the use thereof in the commercial world has been brushed aside on entirely irrelevant considerations by the departmental authorities, The Assistant Collector decided to ignore the evidence of this witness by saying that it was off the rail. The position is worse when we read the judgments and orders of the appellate Collector and the revisional authority. They have not thought fit to look at this evidence. In that view of the matter, when the correct test has not been applied by the departmental authorities for deciding the present question and when they have not gone into the relevant and material evidence on this aspect, and especially when they have not chosen to cross-examine the witnesses, and have not led any rebuttal evidence, the findings arrived at by the departmental authorities would obviously suffer
15. Now in the light of the correct test as propounded by the Supreme Court, the question will have to be decided in the light of the test of recognition of goods in common parlance, namely, whether a common man who is conversant with this type of goods would treat the disputed items of glass as sheet glass or not; or, in other words, if a customer goes in the market to purchase these items i.e. wired glass, figured glass or other glass, and if he is supplied sheet glass will he accept it or, to put it differently whether the customer who demands figured glass or wired glass would purchase sheet glass from, any business man and would any businessman give sheet glass when customer wants wired glass or figured glass It is this test which has been completely ignored by the departmental authorities and on this aspect the evidence of K..D. Shah remains unchallenged and hence the conclusion is inevitable that on the application of the correct test the disputed items of glass manufactured by the petitioner company can never be covered by the phrase sheet glass and hence tariff item 23A (i) cannot apply to the facts of this case.
16. Apart from this aspect of the matter Mr. Daru also placed reliance on various other aspects. He submitted that even the process of manufacturing sheet glass was entirely different from the process of manufacturing other types of glasses. It was submitted that sheet glass does not undergo any other transformation to become figured glass or a wired glass. Each such glass is manufactured by a separate process, and emerges as a finished product as such, viz. when manufacturing process for sheet glass is over, a sheet glass is manufactured. Similarly by other manufacturing process the finished product which emerges is wired glass or coloured glass etc., as the case may be. It has been stated in the petition that even the furnaces for manufacturing different types of disputed items are quite different. It is stated that the petitioner-company manufactured sheet glass from one furnace while it manufactured wired glass or coolex glass or figured glass, as the case may be, from different furnaces. Thus, it is not as if sheet glass after being manufactured is further processed to be converted into figured glass or wired glass etc and consequently there is no question of these other types of glasses being part and parcel of sheet glass as submitted by the respondents.
17. Even apart from this, each of these items had different characteristics. It was submitted by Mr. Daru that even apart from the common parlance test and the fact that the customers and businessmen understand these various items as different commodities in ordinary commercial market, even by appearance these commodities had, their distinct individual characteristics. That sheet glass and plate glass are transparent. The sheet glass has waviness. while plate glass has no waviness. These characteristics are absent in figured glass, rolled glass, wired glass, coolex figured glass, coloured figured glass and coolex wired glass. It was further submitted that the characteristics and properties like obscurity or transparentness, design and pattern, wire mesh embedded etc. are not to be found in sheet glass or plate glass
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20. Mr. S.N. Shelat, learned Advocate appearing for the respondents, raised certain technical contentions and also addressed us on merits. We will take up the contentions on merits first. It was submitted that after all sheet glass was the genus and if it is subjected to wire mesh it would result into wired glass, if it was subjected to colour treatment, it would result into coloured glass and so on. This submission of Mr. Shelat was completely contrary to the overwhelming evidence led by the petitioner company before the departmental authorities which showed that it was not so and there was no question of sheet glass being subjected to different processes which would result into wired glass or figured glass or coloured glass etc. The process of manufacture of each type of glass is different and each type of glass results into completed manufactured product quite independent of the other and each glass is separately manufactured by a separate process. Thus, the submission on behalf of the respondents is completely misconceived and contrary to the evidence led in the case and cannot support the bald proposition of the departmental authorities.
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24. Mr. Shelat also placed reliance on the title of the entry 23A and submitted that the very title of the entry denotes that it is meant to cover all types of glass and glassware. Entry 23A is reproduced in earlier part of this judgment and it reads 'glass and glassware' and there are four sub-items mentioned therein. It is pertinent to note that the word 'glass' is mentioned in the entry while giving all the details of the items which were liable to bear excise duty. The various rates which are prescribed do not cover all types of glass. Only sheet and plate glass are mentioned in sub-item (1) and the rest are all glassware. Even the sub-item (4) does not mention 'other glasses', as we find in entry 60 of the Customs Act. Consequently, by merely mentioning the word 'glass' in the title of the item, it cannot be presumed that sheet glass and plate glass would cover all other types of glass. Now so far as the heading of the item is concerned, Mr. Daru pointed out that in the Central Excise Tariff of India, 1978, published by Central Law office, Delhi, item No. 35 refers to cycle parts in general. While in the tariff description only two cycle parts are mentioned as parts of cycle other than motor cycle - (i) free wheels (ii) Rims. Different rates have been prescribed for only these parts even when a general term 'cycle parts' is mentioned in the title of the entry. Merely because the heading of the entry is wide, it would not mean that it would cover all types of commodities which would be covered by the general heading unless specific provision is made for these different parts in the body of the entry or item. Consequently, we cannot accept the sub-mission. of Mr. Shelat on the construction of the item 23A in the light of its heading.
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30. We, therefore, hold on the application of the correct test of common parlance as to how a commodity is known in the common market and in commercial world by those who normally deal with it as buyer or seller or as manufacturer or as a user of such commodity and in the light of the test evolved by the three aforesaid decisions of the Supreme Court, the disputed goods manufactured by the petitioner-company, viz., figured glass, wired glass, coloured figured glass, rolled glass, coolex wired glass and as shown in the show cause notice, Annex. A to the petition, do not fall within the scope and ambit of item 23A(i) as they are not sheet glass but they fall in the residuary tem No. 68 and they would be liable to bear excise duty accordingly. * * * * *
32. The petition is accordingly allowed by issuing a writ of certiorari by quashing and setting aside the impugned orders of the departmental authorities at Annexures E, F and G of the petition and by a writ of mandamus the respondents are directed to levy excise duty on the disputed items of glass manufactured by the petitioner as shown in the show cause notice at Annex. A by treating these goods as falling under residuary item No. 68 of the First Schedule to the Central Excise Act and not under item 23A. They are further directed to revise the relevant assessments accordingly for the period from 20-2-1976 onwards. The respondents are further directed to refund the amount of excess excise duty collected by them on the disputed items from 20-2-1976 on the wrong assumption that they were covered by item 23A, and not by residuary item 68.
33. Rule is accordingly made absolute with costs.
34. Mr. Shelat applied for leave to appeal to the Supreme Court under Article 133(1) of the Constitution. As we are merely following the well settled position laid down by the Supreme Court by a series of judgments on admitted and uncontroverted facts on record, no substantial question of law of public importance arises in the present case which is required to be decided by the Supreme Court and hence the oral application made by Mr. Shelat for leave to appeal to the Supreme Court is rejected.