1. This petition raises an interesting question as to the scope of Entry 23-B in the first Schedule to the Central Excises and Salt Act, 1944. The petitioner, the English Electric Co. of India Ltd., engages itself in manufacturing equipment useful in the distribution of electricity at its works at Pallavaram near Madias. One of the items of manufacture is High Rupturing Capacity Cartridge Fuselinks. The question is whether this will attract excise duty under the Entry. For the year 1968, the Revenue, after consulting the Chemical Examiner, concluded that the particular H. R. C. Fuselinks would not fall within the scope of Entry 23-B. But, on 7-11-1973, the Superintendent of Central Excise, Guindy Mixed Range, notified the petitioner that in view of the revised opinion expressed by the Chemical Examiner, the article would attract excise duty. A part of the Chemical Examiner's report was cited, in that communication. It said that the sample was in the form of white hollow cylindrical piece having rough surface, that when written on by ink, the ink markings could not be easily rubbed off showing the sample was not glazed, that on breaking the sample the broken surface was found to be rough and no pores were visible to the eye, that water absorption was found to be 0-37% and that it was composed of compounds of aluminium, calcium, magnesium, iron and silicon. The report, therefore, concluded by saying that the article could be considered as procelainware. This conclusion is resisted by the petitioner.
2. For the Revenue, our attention was invited to Girdharilal v. Union of India, : 1964CriLJ461 , in support of the contention that, since this court, under Article 226 of the Constitution of India, was not sitting in appeal over the decision of the Excise authorities, the correctness of the conclusion reached by such authorities on the appreciation of the item in the Central Excises and Salt Act, 1944, was not a matter which would fall within the writ jurisdiction of this Court. We are unable to accept the contention. The Supreme Court there was dealing with a different situation in relation to the facts of that case, and we do not think that it applies to the case before us. The scope of an Entry in the First Schedule to the Central Excises and Salt Act, 1944, is always a question of law and whether it applies to a given article is also a mixed question of law and fact and such a question is, therefore, within the power of the High Court under Article 226 of the Constitution to deal with.
3. The petitioner contends that the article before is is not porcelain, which according to him, normally contains 50% China Clay, 25% Quartz and 25% Feldspar. Re-cause the article in question dues not conform to that composition, but contains 28% of Steatite and 20% of Zirvon Silicate and also absorption capacity of 0-37%, it need not necessarily be regarded as porcelain. The Entry reads-
'23-B. Chinaware and Porcelainware--All sorts-- (1) Tableware, (2) Sanitaryware (3) Glazed tiles (4) Not otherwise specified.'
The Explanation to the Entry says that 'Chi-naware' includes all glazed clayware hut does not include terracotta. But we are not concerned with this in this case, 'Porcelain' is defined in several publications. Indian Standard Glossary of Terms relating to Cera-micware defines 'procelain' as a glazed or unglazed ceramic white ware having not more than 0-3% water absorption. The Shorter Oxford English Dictionary gives the meaning of the word 'porcelain' as a fine kind of ear-thernware, having a translucent body and a transparent glaze, or anything made of this. The publications are all agreed that porcelain normally contains China-clay, Quartz and Feldspar. But they show that the proportion which the petitioner mentioned is not always a crucial test; nor even the thermal expansion capacity or the capacity of absorption, which according to the books seems to vary between 0-5% and 0-3%. Merely because Zircon Silicate to the extent of 20% and Steatite to the extent of 28% form components of what is normally called porcelain, the produce does not cease to be porcelain. For instance. 'Ceramics in the Modem world' by Maurice Chandler states that in steatite ceramics, a high proportion of steatite (a natural crystalline form of magnesium silicate, or talc) is mixed with far smaller proportions of day and some flux or fluxes other than the usual ceramic flux, feldspar. It is also pointed out that feldspar is excluded, because it contains the oxides of sodium and potassium, the alkalis that are responsible for the rather high dielectric loss of ordinary porcelain. The flux that normally replaces it is barium carbonate, though magnesium carbonate is sometimes used instead. We also find it stated ip this book that another of the two important low-loss ceramics, developed since World War II, is zircon porcelain, a kind of porcelain in which quartz is replaced by zirconium silicate and feldspar by alkali-free fluxes. In the Introduction to Technical Ceramics, Waye points out that Talc, another source of MgO, and commonly used in other branches of the industry, is an important constituent of cordierite and steatite ceramics. Steatite is properly the massive form of talc, but the term has come to be used also for ceramics made mainly from talc. Talc was formed by the hydration of magnesium bearing rocks under pressure, and occurs in various parts of the world; the main sources for use in England are Egypt and India. Reference is also made in this book to Zirconium compounds, which occur in alluvial sands in Cey-lon, Madagascar and Australia, This form of porcelain is used in electro-ceramics and it is the major constituent of zircon porcelain. Under the topic 'Ceramic Compositions' it appears, as seen from this book there are two types of steatite ceramics, normal and low-loss; the former is fluxed with feldspar and the latter with alkaline earths, which give higher Te values. Small amounts of other materials may be added, e. g. MgCO3; and also ZrO2 and alkaline earth Ziromum silicates, which are claimed to improve thermal shock resistance, although this is not often required. The clay assists in plastic shaping and also in fluxing. The content may be increased and decreased according to whether plastic shaping or dry pressing is to be used. So far as translucency as a property of porcelain is concerned; it does not seem that it is an essential requisite of ap article to be porcelain. We have examined some of the other definitions of the term. In 1970 Annual Book of ASTM Standards, porcelain is said to be a glazed or unglazed vitreous ceramic white-ware used for technical purposes. It is also said that the term designates such products as electrical, chemical, mechanical, structural and thermal wares when they are vitreous. Waye in his Introduction to Technical Ceramics points out that the properties required in electrical porcelain are somewhat different from those for domestic ware--translucency and whiteness are less important, mechanical and electrical properties are more important. In 1970 Annual Book of ASTM Standards we find that the extent of absorption may also vary and need not necessarily be fixed, but within certain maxi-mums. The term 'vitreous' generally signifies less than 0-5 per cent absorption except for floor and wall tile and low-voltage electrical porcelain which are considered vitreous upto 3-0 per cent water absorption. 'Vitrification' itself signifies progressive reduction in porosity of a ceramic composition as a result of heat treatment, or the process involved. So then, the net result of these publications is that while porcelain may have as its components kaolin--China-clay, feldspar, which contains silicon and calcium and quartz, which is mainly silicon, the variation in the proportions of each of these main elements, subject to limitations will not alter the character of the product as porcelain. The proportion may vary depending on the different objectives for which the product may be used. We are, therefore, inclined to think that the variations in the proportion or the quality of porcelain in the matter of thermal expansion and pressure of translucency or composition will not alter the character of the article as porcelain. But this result will not conclude against the petitioner.
4. The further contention is that since. Entry 23-B speaks of chinaware and porcelainware, all sorts, the article in question cannot be regarded as a porcelainware. 'Ware', according to the Shorter Oxford English dictionary, means articles of merchandise or manufacture; the things which a mar-chant, tradesman, or pedlar has to sell; goods, commodities. Mr. Utham Reddi for the petitioner draws our attention to Union of India v. Delhi Cloth and General Mills, : 1973ECR56(SC) , and contends that porcelain which is a component only of H. R. C. fuselinks cannot he regarded as goods within the meaning of 'excisable goods' under the Act. Section 3 is the charging section, which says that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule. 'Excisable goods', as defined in Section 2(d), means goods specified in the First Schedule as being subject to a duty of excise and includes salt. In Union of India v. Delhi Cloth and General Mills, : 1973ECR56(SC) it was held that goods for purposes of Central Excises and Salt Act, having regard to the definition of 'excisable goods and the charging section, would refer to an article which could ordinarily come to the market to be bought and sold. The petitioner says that the porcelain component of the H. R. C. fuselinks is not by itself marketable, as it is designed only to serve as a component of such fuselinks. But in the same decision, the Supreme Court pointed out that the fact that the substance produced by the manufacturer at an intermediate stage was not put in the market would not make any difference to the chargeability of the substance to excise duty if it is covered by an item in Schedule I of the Act. The question, therefore, would be whether H. R. C, fuselinks would fall within the ambit of Entry 28-B, in the first Schedule to the Act. No doubt, the heading of the Entry covered porcelainware of all sorts. If we stop there, there is no difficulty in stating that any kind of porcelainware will fall within the Entry. But then, when one looks into the itemisation of articles in the Entry, doubt arises whether an article like H. R. C. fuselinks will be within the ambit of the Entry. The enumeration of the articles consists of tableware, sanitary ware, and glazed tiles. Fuselink of the type we have here has no possible anology at all to any of the things mentioned there. It is no doubt true that the fourth item of entry 23-B is 'not otherwise specified' and this phraseology' read with 'all sorts' may perhaps justify a contention that porcelain of all sorts, although not 'tableware, sanitary ware and glazed tiles' will fall within the scope of Entry 23-B. But the pointed argument of Mr. Utham Beddi before us is that H. R. C. fuselink as such is not and cannot be described as porcelain-ware. We have already noted the meaning of the word 'ware' and this word 'ware' oc-curs as part of tableware, sanitary ware and glazed files. To our minds, it is difficult to regard H. R. C. fuselink as porcelainware merely because one of its components is made of porcelain. The whole thing, namely, HRC, fuselink, is a manufactured article and one of its components is porcelain. But merely because that component forms part of the finished article, we cannot take it that that by itself will come within Entry 23-B, for, it must be a porcelainware as such. Hardly, H. R. C. fuselink can be described as a porcelainware as we commonly understand the phrase. That the Legislature is familiar with a fuselink like the one we have before us is clear from the fact that in Item No. 73 (sic) of the First Schedule to the Indian Tariff Act 1934, the article is described as follows-
'Electrical Control Gear and Transmission Gear, namely, Switches-- (excluding switch boards), fuses and current breaking devices of all sorts and descriptions, designed for use in circuits of less than ten amperes and at a pressure not exceeding 250 volts.'
This is an article which will fall possibly under that Entry 73 (1). By no stretch of imagination, we can say that merely because an article described under Entry 73 (1) contains, as a component, a piece of porcelain, it becomes a porcelainware for purposes that entry. No less can it become porcelain-ware for purposes of Entry 23-B in the first Schedule to the Central Excises and Salt Act, 1944.
5. We are, therefore, of opinion that H. R. C. fuselink in this case will not be liable to excise duty under entry 23-B. The petition is allowed with costs. Counsel's fee Rs. 250.