1. The facts leading to the writ petition are as follows : The petitioner is the manufacturer of cycles at its factory at Ambattur. It clears and supplies cycles in fully assembled condition from the factory to dealers in Madras and nearby places, while for the dealers in other places the factory clears and supplies cycles in completely knocked down condition (hereinafter referred to as CKD condition) i.e. instead of assembing the cycles in the factory itself, the manufacturer clears and supplies to dealers, all parts of the cycle and the actual assembly of the cycle is done at the destination by the dealers.
2. Prior to the introduction of the Finance Bill of 1975, under Item 35 of the First Schedule of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), only two parts of the cycle, viz, (i) free wheels and (ii) rims were liable to excise duty. However, the effective rate of duty on these parts was 'nil' in view of the exemption notification issued by the Government of India. In the Finance Bill of 1975, a new Item was added to the First Schedule under Item 68. That reads: 'All other goods, not Isewhere specified munfactured in a factory-one per cent ad valorem. The effect of this is all parts manufactured in a factory but not coming within the purview of any of the other Items in the first Schedule of the Act is liable to levy of one percent for Central Excise under item 68 with effect from 1st March, 1975. This payment of duty was continued till 25-3-1975, and thereafter it was discontinued on fully assembled cycles on the ground that these two Items were covered by Item 35 and therefore not liable to duty under Item 68.
3. The company challenged the levy of duty at one per cent on all parts of completed cycles cleared from the factory in unassembled condition, which the Company termed as 'CKD' condition. Certain trade notices were issued but ultimately the department took the view that cycles under Item 35 would mean only fully assembled cycles and not cycles in CKD condition. It is that which is challenged in the writ petition.
4. The counter affidavit takes the stand that the essential character of a cycle is that it moves as a means of transport, parts of cycle in an unassembled condition cannot move, nor can they be used as a means of transport. They do not, therefore, have the essential character of a cycle.
A reply affidavit has also been filed reiterating the allegations contained in the affidavit.
Having regard to the above, the short question that arises for my determination is-What exactly is the interpretation to bs placed on the word 'Cycles' as occurring in Item 35 of the First Schedule, before amendment by Act 66 of 1976 ?
5. Mr. K-K. Venugopal, learned counsel for the petitioner, raises the following contentions in support of his submission :-(1) Cycles in unassembled condition or 'CKD' condition would undoubtedly fall within the word 'cycles' as occurring under Item 35. Having regard to the development of trade, the variou parts of cycles, all of which if assembled would con-sititute one cycle as an integral whole or sent eparately in convenient small packings. Therefore, to state that only fully assembled cycles are covered by this Item 35 is totally incorrect. In matters like this, how the trade understands it is essential as laid down in Union of India v. Delhi Cloth and General Mills, : 1973ECR56(SC) . In the instance, the trade understands even the unassembled cycle in CKD condition as a cycle. (2) The department itself was not sure of the position is clear from the three public notices issued in May 1975 and February 1976. Therefore, in matters like this, a construction beneficial to the assessee must be made. (3) If a comparison is made with Item 29-dealing with refreigerating and air-conditioning appliances, it would be clear that wherever individual parts are sought to be taxed, that is. specifically mentioned. Likewise, when comparison is made to Item 33, certainly it cannot be said that electric fans though packed in several parts would not fall within that Item. (4) Brussels Trade Nomenclature does include CKD condition. The Customs Tariff Act, in relation to rules for interpretation under (First Schedule-Import Tariff)clause 2 (a) includes goods in unassembled condition. Certainly the petitioner can derive assistance from the same.
6. Mr. T. Chengalvarayan, learned counsel appearing for the department, would meet this contention stating what is essential in all these cases is how the entry could be understood in its 'ordinary and popular sense' and not in 'technical sense'. What has to be adopted is the utilitarian test. Entry 35 is unambiguous and clear in that it refers only to 'cycles'. In ordinary sense, it can never mean unassembled cycles. It should necessarily mean 'cycle ready to be used as a means of transport'. Support for this kind of interpretation is derived from my judgment in W.P. 5459 of 1975 batch=The English Electric Co. of India Ltd., Madras v. Government of India, Ministry of Finance, Dept. of Revenue and Insurance, New Delhi- : 1979(4)ELT36(Mad) .
Again it is the utilitarian test which should govern. If the interpretation sought to be placed by the petitioner is to be adopted, it would undoubtedly create chaotic condition in that the petitioner can send various parts of the cycle thereby avoid payment of excise duty while the dealer after assembling those parts can sell it as cycle. In such a case, the cycle, which normally would have been liable to excise duty, becomes free of excise duty. Such an interpretation which would have the consequence of avoidance of excise duty and hence should not be favoured.
7. Lastly it is contended by Mr. Chengalvarayan that having regard to the later amendment the intention is made clear that only the fully assembled cycle would fall under Item 35. Item 35 as it originally stood before the amendment under Act 66 of 1976 reads as follows-
'Cycles, parts of cycles other than motor cycles, namely-
(i) free wheels... two rupees each
(ii) rims...four rupees each.'
By the amendment, for the words 'cycles parts of cycles' the words 'part' of cycles 'were substituted.
8. Cycle would normally mean cycle as is understood in the ordinary and popular sense. This would, therefore, connote assembled cycle which is i means of transport. The unassembled parts, even though if assembled, would constitute as an integral whole as a cycle cannot have essential character cycle. To my mind, the entry is clear and unambiguous, and cannot be understood in the narrow technical sense but only in the ordinary and popular sense. Mr. Chengalvarayan is justified in relying upon my judgment in W.P. 5459 of 1975- : 1979(4)ELT36(Mad) batch, which supports him to a great extent, Whatever may be the modern method of trade in assembly and packing, so long as the accent concerning the excise duty is on cycles, which would undoubtedly mean a fully assembled cycle and not the one in CKD condition. The petitioner cannot complain that even unassembled parts fall under Item 35. Even if some other interpretation is possible; so long as the interpretation adopted by the'department is reasonable and in my view in this case it is so, that cannot be interfered with under Article 226 of the Constitution of India, since it is well known that the department has a wide discretion to classify. Therefore, the decision cited by Mr. Venugopal viz, Union of India v. Delhi Cloth and General Mills- : 1973ECR56(SC) has no application to the facts of the present case. Nor again am I impressed with the argument that because contradictory stand is taken in the three public notices, the court will so interpret the Item as to favour the assessee. A comparison of this Item with either Item 29-A or 33 is odious because in both these entries the words 'all sorts' occur. I may also add that each entry will have to be interpreted on its own. Only if there is any ambiguity, resort should be had to the other material. In this view, I find the Brussels Trade Nomenclature cannot be pressed into service. Likewise Rule 2 (a) of the Customs Tariff Act, 1975 which reads as follows :
'Any reference in a heading to an article shall be taken to include a reference to that article in incomplete condition or unfinished, provided that, as imported, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule) imported unassembled or disassembled.'
does not afford any assistance to the petitioner.
9. In the result, the writ petition will stand dismissed with costs. Counsel's fee Rs. 200.