S. Obul Reddi, C.J.
1. The short question that arises in this Special Civil Application is whether Swishflo Fan falls within the ambit of entry 33 (1) or entry 33 (2) of Schedule I to the Central Excises and Salt Act, 1944. The respondents, treating Swishflo Fan as an electric fan falling within the scope and ambit of Entry 33 (3) that is, 'Not otherwise specifically levied excise duty at 12 per cent ad valorem. It is this demand by the respondents that led to the filing of the petition by the petitioners, Swishflo Private Limited another.
2. According to the petitioners, Swishflo electric fan falls under sub-item (1),of Item No. 33 and hence the duty is payable only at the rate of 7.2 per cent ad valorem. The respondents resisted the petition contending inter alia that this Swishflo fan has no diameter and hence only fans referred to in sub-item (1) which have a diameter not exceeding 40.6 cm. that would be entitled to the levy of excise duty at 7.2 per cent ad valorem. It is also the case of the respondents that the motors which are used in the Swishflo fan are not exempt from levy of excise duty. In support of that contention the respondents relied upon the notification dated March 17, 1972 which according to them takes away the exemption granted to electric motors under the notification dated March 1, 1969, We may, therefore, first deal with the question whether the motors used in the Swishflo fan are excisable goods under the notification dated March 17, 1972.
3. It is not in dispute that under the notification dated March 1, 1969 the Central Government exempted, by virtue of the p6wers vested in it under Rule 8 of the Central Excise Rules, electric motors, rotors and stators falling under Item No. 30 from the whole of the duty of excisable leviable thereon if such electric motors, rotors or stators are. used in the factory of production as component parts in the manufacture of electric fans (falling under Item No. 33 of the First Schedule to the Central Excises and Salt Act, The motors used in the Swishflo electric fan tire component parts and there is no dispute regarding this fact. What is contended by Mr. Mehta appearing for the respondents is that while the petitioners were entitled to exemption under the notification dated March 1, 1969 upto March 17, 1972 in respect of the components used, they were not entitled to that exemption after March, 17, 1972.
4 We are unable to agree with Mr. Mehta that the exemption granted to the component parts specified in the notification dated March 1, 1969 is taken away by the subsequent notification dated March 17, 1972. This latter notification on which reliance has been placed by the learned counsel for the respondents reads as under : -
'There is nothing in this notification to indicate that electric motors which are used in the factory of production as component parts in the manufacture of electric fans is taken away. If it was the intention of the Central Government to take away the exemption granted, they would have rescinded, amended or issued the notification dated March 17, 1972 in supersession of the earlier notification.'
5. However, in support of his argument, Mr. Mehta relied upon a subsequent notification dated September 15, 1973. This notification only introduced an amendment so as to make the exemption granted under the notification dated March 1, 1969 applicable to electric motors on which the duty of excise is leviable whether in whole or in part. In other words, it enlarged the scope or exemption by including electric fans on which the duty of excise is leviable 'whether in whole or in part'. We are, therefore, unable to agree with the learned counsel for the respondents that the notification dated March 17, 1972 takes away the exemption granted to electric motors used in the factory of production as component parts in the manufacture of electric fans.
6. The only other point that remains to be considered is, whether it is necessary that to be entitled to the lower rate of duty at 7.2 per cent ad valorem, the fan in question should also have a diameter sub-entries (1) and (3) have been already quoted.
7. The Swishflo fan is not the conventional type of fan. It is rectangular in shape and instead of using blades as in the case of the conventional fans, two vertical rotors are used and they 'suck in and blow air, thus answering the description of 'electric fan.'
8. The Assistant Collector of Central Excise rejected the claim of the petitioners for levy under sub-item (1) on the sole ground that the diameter of the Swishflo fan cannot be ascertained. There are two rotors each rotor is 6 cms. in width. The Assistant Collector seems to have been guided merely by the shape of the fan as it is not the conventional type of fans so as to fall under sub-item (1).
9. We are, therefore, of the opinion that the Swishflo fans fall within the description of fans described in sub-item (1) of entry 33 and not under sub-item (3) of the same Entry.
10. We, therefore, allow this writ petition and direct the respondents to levy excise duty on Swishflo fans manufactured by the petitioners in accordance with the rates specified in Entry No. 33 (1). The petition is allowed accordingly. Rule made absolute in terms above.