Skip to content


Macneill and Barry Ltd. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKolkata High Court
Decided On
Case NumberC.R. No. 16969 (w) of 1975
Judge
Reported in1984(2)ECC57,1986(6)LC526(Calcutta),1985(22)ELT391(Cal)
ActsFinance Act, 1971; ;Central Excise Act, 1944 - Section 36(2); ;Central Excise Rules, 1944 - Rules 10 and 173A; ;Constitution of India - Article 226
AppellantMacneill and Barry Ltd.
RespondentUnion of India (Uoi)
Appellant AdvocateDebi Pal and ;M. Seal, Advs.
Respondent AdvocateS.N. Banerjee, Adv.
Cases ReferredBhola Prasad v. Emperor
Excerpt:
c.e.s.a., 1944, first schedule, item 34b - classification--trucks--specific names 'forklift trucks' and 'platform trucks' do not include other works tracks or reach trucks. the expression 'the following, namely' is restrictive. benefit or ambiguity goes to tax payer. - .....in my view the said expression 'the following, namely' is definitely restrictive and it restricts the preceding words to the words following.36. i respectfully agree with the view taken by the division bench of the bombay high court in chemicals and fibres india ltd. 1982 e.l.t. 917 and hold that under item 34b it is not permissible to levy excise duty on all types of mechanically propelled works trucks generally and further that under the said item excise duty can be levied only on forklift trucks and platform trucks.37. for the reasons as aforesaid this application succeeds. the rule nisi is made absolute. there will be no order as to costs.38. the operation of this order is stayed for one week after the winter vacation. it is, however, made clear that the petitioner will not be.....
Judgment:
ORDER

D.K. Sen, J.

1. Macneill & Barry Ltd., the petitioner, manufactures inter alia, mechanically propelled works trucks of different types including forklift trucks and reach trucks.

2. Under the Finance Act, 1971, an item was introduced in the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the said Act), as follows :

'Item No. Description of goods Rate of duty

34B. Works trucks, mechanically propelled, used 10 per cent

for short distance transport or handling of ad valorem

goods, the following namely:-

(1) Forklift trucks

(2) Platform trucks

3. By his order dated the 24th September, 1971, the Assistant Collector of Central Excise VII, respondent No. I herein, held that reach trucks, and other types of works trucks apart from forklift trucks, manufactured by the petitioner, should be considered to be forklift trucks and platform trucks within the meaning of the said item No. 34B and accordingly exigible to excise duty.

4. Being aggrieved by the aforesaid the petitioner preferred an appeal from the said order dated 24th September,1971, before the Collector of Central Excise, Calcutta, respondent No. 2.

5. By an order dated 29th January, 1974, the Appellate Collector, Central Excise, Calcutta, allowed the appeal and recorded as follows :

'I have considered the case carefully and I find that the Assistant Collector himself has stated that the subject goods are other than forklift trucks and platform trucks. This is exactly so as given in the tariff. I, therefore, do not find any justification for classifying the subject goods as excisable under item 34B.

The appeal is, therefore, admitted with consequential relief.'

6. On the application of the petitioner a consequential order for refund of Rs. 5,11,555.95 was passed by the Assistant Collector of Central Excise in favour of the petitioner on 8th May, 1974.

7. Thereafter, on 13th January, 1975, a notice under Section 36(2) of the said Act was issued to the petitioner by the Joint-Secretary, Government of India, Ministry of Finance, respondent No. 3, stating, inter alia, that the order passed by the Appellate Collector, Central Excise, Calcutta, was not legal or correct and that in exercise of powers vested under the said section, the Central Government proposed to set aside the same and restore the original order of respondent No. 1. The petitioner was directed to show cause within 30 days from the receipt of the notice why the order of respondent No. 2 should not be set aside

8. The petitioner as directed showed cause in writing dated 14th March, 1975, to the Joint-Secretary, Government of India, Ministry of Finance. On 19th May, 1975, respondent No. 3 passed an order setting aside the order of respondent No. 2 and restoring the order of respondent No. 1. It was, inter alia, held by respondent No. 3 as follows :

'Government of India has considered the submission of the party and observes that reach is truck no doubt a variety of works trucks used for short distance transport or handling of goods. Like forklift truck it has chassis, drive unit and transmission, electrical system, battery, motors, hydraulic system, mast unit, storing, brakes and wheels. The main feature of a forklift truck is the twin telescopic mast unit with adjustable or removable forks for carrying the load and a tilt jack which provides backward and forward tilting movement. There is also a twin telescopic mast unit with a fork carriage in the 'reach truck' and instead of a tilt jack it has twin tilt cylinders which tilt the mast forward and backward. In the reach truck there is sideways position of the driver whereas in the forklift truck the driver faces the forklift mast. In it the complete mast assembly is pivoted in a steel carriage and there are load wheels. In forklift truck there are no load wheels. Thus constructionally the two are different but functionally reach truck is really a variety of truck with forklift, i.e., a forklift truck, and used for identical puroses. It should come within the meaning of forklift trucks and should pay duty accordingly.'

9. Pursuant to the aforesaid, respondent No. 1 issued a notice of demand under Rule 10(a) of the Central Excise Rules, 1944, dated 21st July, 1975, calling upon the petitioner to pay Rs. 2,78,299.35 being the Central excise duty leviable on reach trucks manufactured at and cleared from the petitioner's factory between 31st July, 1971 and 30th December, 1973.

10. Being aggrieved by the aforesaid, the petitioner moved the present application under Article 226 of the Constitution on 29th September, 1975, where a rule nisi was issued calling upon the respondents, namely, the Assistant Collector of Central Excise, Calcutta VII Division, the Collector of Central Excise, Calcutta and Orissa, the Joint Secretary to the Government of India, Central Excise, Ministry of Finance, Department of Revenue and Insurance, and the Union of India to show cause why appropriate writs should not be issued directing them, inter alia, not. to give further effect to the said impugned orders and demand respectively dated 24th September, 1971; 19th May, 1975; and 21st July, 1975, and also for quashing the same.

11. In the petition it is contended, inter alia, that the said Act does not define, either a forklift truck or a platform truck. Item 34B of the First Schedule to the Act provides that duty would be payable only on forklift trucks and platform trucks but not on other types of works trucks. It was not the intention of the legislature to impose duty under the said item on other types of works trucks apart from forklift trucks and platform trucks. It is contended that a reach truck is different from a forklift truck both constructionally and functionally.

12. Leaflets published by the petitioner containing diagrams and details of different types of works trucks have been annexed to the petition to demonstrate the difference between a reach truck and a forklift truck.

13. It is alleged that in passing the impugned order dated 19th May, 1975, respondent No. 3 relied upon the glossary of certain terms in the Indian Standard Specification I.S. 4600-1968, which do not define a forklift truck but only fork truck, reach truck and other types of powered and non-powered trucks.

14. It is contended that the respondents had no power, authority or jurisdiction to give an incorrect and extended definition of forklift trucks and platform trucks and to impose duty on other different types of works trucks under item 34B of the said schedule on the basis of such an extended definition.

15. The impugned orders, and the demand it is contended, are illegal, invalid, inoperative and made without or in excess of jurisdiction and grounds should be quashed or set aside on the grounds as aforesaid.

16. On behalf of the respondents, an affidavit of Panchanan Barman, the Assistant Collector of Central Excise, Calcutta VII, affirmed on 18th April, 1977, has been filed in opposition to the petition. It is, inter alia, stated in this affidavit that respondent No. 1, under Rule 173A of the Central Excise Rules, 1944, acting as the sole authority for approval of the necessary excise forms indicating the correct classification of the goods and rates of duty, duly classified works trucks of different types, manufactured by the petitioner under the said item 34B.

17. It is alleged that a reach truck is a type of works truck which is by and large identical in construction and use as that of a forklift truck and both can be used for the same purpose and thus satisfies the main identifiable tests. Accordingly, reach trucks are classifiable under the said tariff item and liable to duty at the same rate.

18. It is contended that the said item 34B covers all works trucks mechanically propelled and used for short distance transport or handling of goods. It is contended further that forklift trucks and platform trucks were enumerated in the item by way of example.

19. It is contended last that the dispute in this application is one of facts, namely, the nature of the dutiable articles and their use and the authority empowered to determine the same under the statute has finally done so. This Court is not the forum for the remedy claimed by the petitioner.

20. One Jagadish Raj Bammi, a Director of the petitioner, has affirmed in an affidavit on 22nd September, 1983 which has been filed in reply to the aforesaid affidavit of Panchanan Barman. It is, inter alia, alleged in this affidavit that a reach truck as such does not come under the said item 34B. The Assistant Collector wrongly classified works trucks other than forklift and platform trucks under the said item.

21. It is alleged that reach trucks are completely different from forklift trucks both functionally and constructionally. A reach truck no doubt has certain features common with forklift trucks and both are used for handling goods. But commercially and technically they were different articles. Particulars of the differences between the two have been stated in this affidavit.

22. At the hearing, Mr, Pronob Pal, the learned Advocate for the petitioner, contended that under item 34B of the First Schedule to the said Act only platform trucks and forklift trucks were meant to be subjected to excise duty. The said item clearly showed that only two types of works trucks, namely, forklift trucks and platform trucks, were meant to be subject to excise duty. By the use of the expression 'the following, namely' in the item it was made clear that all other types of works trucks mechanically propelled and used for transport over short distances or handling of goods were not meant to be subject to excise duty.

23. Mr. Pal drew my attention to the Indian Standard Institute: Glossaries of Terms relating to powered and non-powered trucks, namely, IS: 4660-1978, IS: 4660-1974 and IS: 4660-1977 and submitted that from the said glossaries it would be quite clear that all reach trucks did not come within the definition of a forklift truck. A forklift truck was a special type of truck specially designed for its special work and did not include all other types of reach trucks. In support of his contentions Mr. Pal cited the following decisions:

(a) Parrys Confectionary Ltd., Madras v. Government of India reported in 1980 E.L.T. 468. In this case item No. 1A of the First Schedule to the said Act was considered and construed by the Madras High Court. This item reads as follows :Item No. Description of goods Rate of duty1A Confectionary, cocoa powder and Ten per centchocolates in or in relation to ad valorem.the manufacture of which anyprocess is ordinarily carried onwith the aid of power, namely:-(1) Boiled sweets, toffees, cara-mels, candies, nuts...

24. The question before the Madras High Court was whether lozenges was eligible to excise duty under the said item. The learned Judge held that the use of the word 'namely' was intended to be an exhaustive definition of 'confectionary' and precluded an enquiry into the general meaning of the word 'confectionary'. It was held further that if an article could not be classified or identified under any one of the categories mentioned in the said item it would not be dutiable under that entry. The composition and manufacture of lozenges were ascertained from technical and commercial books to show that it was different from a boiled sweet or candy and it was held that lozenges could not be made liable to excise duty.

(b) Chemicals and Fibres India Limited v. Union of India reported in 1982 E.L.T. 917. In this case the matter in controversy was whether polyester chips of textiles, when manufactured, was assessable to excise duty under item 15A of the First Schedule to the said Act. The taid item reads as follows :

Item No. Description of goods Rate of duty

15A Artificial or synthetic resins and Twenty per

plastic materials in any form cent ad

whether solid, liquid or pasty, valorem

or as powder, granules or flakes,

or in the form of moulding

powders, the following, namely :

In construing the said item a Division Bench of the Bombay High Court held that the words which followed the expression 'the following, namely' in the said item restricted the scope of the general descriptive words of the said item. It was held further that the effect of the expression 'the following, namely' after the description of an item was that in order that a particular word should fall within the said item the same should not only fall under the general descriptive words but also under the specific enumeration of the named articles following.

The learned Advocate for the respondents, in support of two contentions, cited a judgment of the Punjab and Haryana High Court dated the 25th May, 1981, passed in Civil Writ Petition No. 4552 of 1979 entitled Ajanta Electricals v. Collector of Central Excise. This has been reported in 'Centex', Vol. XVIII, No. 13.

24. In this case the Central excise authorities sought to levy excise duty on electric lamp-holders under item 61 in the First Schedule to the said Act which read as follows :

Item No. Description of goods Rate of duty

61 Electric lighting fittings, namely, Ten per cent

switches, plugs and sockets, all ad valorem.

kinds:

chokes and starters for fluore-

scent tubes.

It was contended on behalf of the assessee that the said item was restricted and limited to the articles specifically mentioned there. The High Court construed the said item and held that the word 'namely' had various shades and meanings depending on the context and the intent in which it was used. Following Stroud's Judicial Dictionary, 3rd Edition and Webster's International Dictionary it was held that the word 'namely' meant 'including' or 'by name' or 'that is to say' and that in the description of goods, the articles mentioned after the word 'namely' were meant to be illustrations of the goods intended to be included in the general description of electric lighting fittings and were not exhaustive. The High Court noted that in Bhola Prasad v. Emperor reported in AIR 1942 FC 17 where the Federal Court held that the expression 'that is to say' only explained and illustrated but did not limit the words preceding the expression. It was held that electric lamp holders were eligible to duty under the said item.

25. The three glossaries of the Indian Standard Institute of terms relating to powered and non-powered trucks may now be considered.

26. In the glossary of 1968 three types of fork trucks are specifically described. The same are (a) fork truck, pedestrian controlled, (b) fork truck, rider controlled, and (c) fork truck with a swivelling mast.

27. In the same glossary two types of reach trucks have been described: (a) reach truck, reaching carriage type and (b) reach truck, reaching mast type.

28. In the 1974 glossary, the same descriptions are repeated.

29. In the 1977 glossary a forklift truck has been specifically described as follows :

'2.2.1.1. Forklift truck-A counterbalanced lift truck fitted with a mast (which may be telescopic and is generally arranged to tilt forward and backward) on which an elevating carriage bearing the load engaging device is mounted. The load engaging device is generally a pair of forks but this can be replaced with other attachments to suit the type of load. This truck may be pedestrian controlled or rider controlled.'

30. In the same glossary a reach truck has also been described as follows:

'2.2.5. Reach Truck-A high-lift truck for use in narrow aisles, which has forward mounted load wheels and load engaging device arranged to move horizontally along the line of travel within the wheel base so as to reach out (or extend forward) for picking up or depositing the load and reach in (or retract) to the carrying position where centre of gravity of the load is within the wheel base. The load engaging device is generally a pair of forks but this can be replaced with other attachments to suit the type of load. The truck may be reaching mast type wherein the mast and the load engaging device are arranged to move together or reaching carriage type wherein the mast remains stationary and the load engaging device is arranged to move.'

31. On a consideration of the aforesaid it appears to me that a forklift truck is a special type of works truck which is constructionally and functionally similar in many respects to a reach truck but is not identical and it cannot be said that all reach trucks would necessarily come within the category or definition of a forklift truck.

32. The very fact that a separate name i.e. 'forklift' has been attributed to such trucks shows prima facie that it was intended to be different from other type of trucks and a reach truck.

33. Even in the impugned order dated 13th January, 1975, it was not held that a forklift truck and a reach truck were identical but that on the similarity in construction and functions the two articles could be equated. From the glossary of 1977 it is established that the two types of trucks are different technical products.

34. A taxing statute which affects the property of citizens has to be construed strictly and it is settled law that in case of any ambiguity the same should be construed in favour of the assessee.

35. I am also enable to accept the contention of the respondents that the said item 34B was intended to cover all types of works trucks and that reference to a forklift truck and a platform truck was only by way of example. The expression in the description is 'the following, namely'. Had the expression been only 'namely' the construction of the item might have been different but the expression 'the following, namely', is not the same as 'namely'. In my view the said expression 'the following, namely' is definitely restrictive and it restricts the preceding words to the words following.

36. I respectfully agree with the view taken by the Division Bench of the Bombay High Court in Chemicals and Fibres India Ltd. 1982 E.L.T. 917 and hold that under item 34B it is not permissible to levy excise duty on all types of mechanically propelled works trucks generally and further that under the said item excise duty can be levied only on forklift trucks and platform trucks.

37. For the reasons as aforesaid this application succeeds. The rule nisi is made absolute. There will be no order as to costs.

38. The operation of this order is stayed for one week after the winter vacation. It is, however, made clear that the petitioner will not be required to renew the bank guarantee already furnished and after the expiry of the stay the petitioner will be at liberty to apply for return of the original bank guarantee dated 8th January, 1980, renewed on 22nd December, 1981, as furnished by the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //