1. The short question that arises for consideration in this writ petition is whether tungsten filaments are liable to import duty under item 81.01/04(1) or item 85.18/27(4) of the Indian Customs Tariff Act, 1975.
2. The petitioner, Bengal Electric Lamp Works, Ltd. Bangalore, is engaged in the manufacture of electric lamps of different sizes, shapes and specifications, the components for the manufacture of the same and is marketing such products. For the purpose of the manufacture of electric lamps the petitioner imports from abroad tungsten filaments. The imported tungsten filaments are subject to levy of customs duty in accordance with the customs Tariff and the Import Trade Control Rules and Procedures. Till 1976, the import duty of tungsten filaments were levied and collected at the rate of 60% plus 15% surcharge on the basis that the tungsten filaments fell within the group of items mentioned in item No. 81.01/04(1) of the Indian Customs Tariff Act, 1975. In 1976, the respondents called upon the petitioner to pay import duty on tungsten filaments at the rate applicable under item 85.18/27(4) of the Indian Customs Tariff Act. 1975, the rate for which is 100% duty plus 20% surcharge. In these circumstances the petitioner has filed this writ petition for issue of a writ of mandamus forbearing the respondents from levying import duty on tungsten filaments as if they fell within item 85.18/27(4) in respect of the consignment to be cleared by the petitioner as per the invoice No. 142/248 and airway bill No. 098/21983791 dated 18-1-1978.
3. While it is the case of the petitioner that tungsten filaments clearly fall within item 81.01/04(1) it is the case of the respondents that they fall within 85.18/27(4) of the Indian Customs Tariff Act, 1975. It is the contention of the respondents that these filaments are part of electric bulbs and therefore should be assessed as electric bulbs.
4. It is necessary to set out the relevant provisions of the Indian Customs Tariff Act, 1975. Item 81.01/04(1) to the extent relevant for out purpose is as follows -
'Tungsten, Molybdenum tantalum and other base metals, wrought or unwrought, and articles thereof; (1) Not elsewhere specified... 60%.'
Item 85.18/27(4) to the extent relevant for our purpose is as follows -
'Electric filament lamps and electric discharge lamps (excluding infrared and ultra violet lamps) are lamps; electrically ignited photographic flash bulbs... 100%.'
The respondents do not dispute that the filaments are made of tungsten which is specifically mentioned in item 81.01/04(1). Once it is admitted that the filaments in question are made of tungsten, it must naturally follow that such filaments should fall under item 81.01/04(1). It is equally not disputed that these filaments cannot straightaway be used in electric lamps as they are not capable of emitting light or electrical energy. They have to be subjected to a process of spraying and coating with a material known as getter and thereafter to a soldering process. It is only thereafter that it will become capable of generating electrical energy. Then only it can become a component of electrical bulbs. In the circumstances, it cannot certainly fall within item 85.18/27(4). On the other hand, when it clearly falls under item 81.01/04(1), I am unable to understand how the respondents can bring it within item 85.18/27(4). The above conclusion receives support from two decisions, one of the Calcutta High Court and the other of the Delhi High Court. The identical question arose for consideration before the Calcutta High Court in Matter No. 948 of 1977 - Bengal Electric Lamps Works Ltd. v. Collector of Customs, Basu J. observed as follows - 'As I have already indicated, the customs authorities have proceeded on the footing that these goods are identifiable part of the electric filament lamp. As I have also indicated earlier according to the petitioner these filaments by themselves are incapable of emitting any light or electrical energy. I may mention that this factual or technical position has neither been contested by the respondents in the affidavit in opposition by Mr. Gouthan Chakraborty in course of his arguments. As will appear from the portion of the petition extracted above, these filaments have to be coated and sprayed with a material known as getter and thereafter has to undergo certain soldering process in order to become a component of an electrical lamp in the sense that it can emit or generate electrical energy. In other words, the imported goods by themselves and without aid of other chemical and allied processes are totally incompetent of producing or generating any electrical energy. In that view of the matter I am entirely unable to see how they can be called electric filament lamps or even an identifiable part or component thereof in order to come within the latter tariff item bearing a higher rate of duty. They are undoubtedly filament but in my view they do not satisfy the description of the electrical goods in the latter tariff item. This contention of the petitioner therefore succeeds.
5. In Civil W.P. No. 562 of 1978 - M/s Sylvania and Laxman Ltd., Delhi vs. Union of India, Deshpande C.J. of the Delhi High Court observed as follows - 'On the other hand, entry 85.18/27(4) is electric filament lamps of which the tungsten filament is only one component. It is argued for the customs authorities that the tungsten filament being the part of the electric filament lamps should be deemed to be covered by the description in entry 85.18/27. This argument would have had force if there was no article more specific covering in its description the articles imported by the petitioner. It is quite clear to us that entry 81.01/04 is the more specific than the rival entry. It is settled law that the special prevail over the general. Without any doubt therefore the goods imported by the petitioner falls under entry 81.01/04 and are thus liable to the payment of customs duty of 60% plus whatever other additional surcharge etc., that may be payable thereon.' Against the decision of the Delhi High Court a special leave petition was filed before the Supreme Court which was dismissed by the Supreme Court.
6. I therefore hold that the tungsten filaments imported by the petitioner fall under item 81.01/04(1) and are thus liable to the payment of excise duty at 60% plus surcharge payable in law. The rule nisi is made absolute. The writ petition is allowed but in the circumstances without costs.