JUDGMENT
Vijender Jain, J.
1. The present writ petition is pending since 1976. Nobody has been appearing on behalf of the respondent. Default notice was issued to the Standing Counsel for Union of India. Service is complete still nobody is present on behalf of the respondent/Union of India. The case of the petitioner is that the petitioner’s products were covered under the classification ‘flat bars’ for payment of Central Excise Duty and their produce was covered under Tariff Ruling No. 4/67, (Annexure ‘C’) issued by the Government of India on 8-6-1967 which is placed at page No. 36 of the paper book. The said Tariff Ruling shows that flats should be distinct from bars on the basis of Indian Customs Tariff Guide (8th Edition). The case of the petitioner is that on 29-1-1974 the petitioner company represented to the respondent Central Excise Ludhiana, inter alia praying that the product of the petitioner-company has been wrongly classified by the department under Tariff Item No. 26AA(iii) which covered ‘flats’ and not ‘bars.’ On 19-2-1974 the said representation was rejected by the Assistant Collector on the ground that the petitioner’s products were known in the ‘trade’ as ‘flats’ and petitioner-company had been declaring as such without protest. Aggrieved by the order passed by the Assistant Collector, the petitioner filed an appeal before the Appellate Collector, Central Excise. The Appellate Collector allowed the appeal, inter alia holding :-
“The appellant’s case has been that the tariff classification for purpose of levy of duty upon their Iron and Steel products having thickness not less than 3/16 inch and not greater than 1, 1/2 inch and width less than 5 inch has been wrongly determined by the Central Excise Officer under Central Excise Tariff Item No. 26AA(iii) which is applicable to flats, whereas their products are correctly classified as bars falling under tariff item No. 26AA(ia). The appellant had during the adjudication stage referred to the existing procedure in support of their contention and fortified this by reference to the Indian Customs Tariff Guide.
I find that the adjudicating officer has without dealing with the party’s specific argument rejected their claim merely on the statement that the aforesaid products are known in the trade as flats. I also find that instructions as to the procedure to be followed for classifying what should be bars and what should be flats, are already in existence since 1963 and there was, therefore, no reason for the adjudicating officer to have disregarded these instructions. The contention of the appellants that their said products are correctly classifiable as bars is, therefore correct. I, accordingly set aside the order of adjudication and direct that on the classification being revised in accordance with the existing instructions on the subject, consequential relief should be given to the appellant.”
2. When the petitioner-company filed the refund claim a show cause notice was received from the Joint Secretary, Government of India exercising the revisional jurisdiction as to why the order of Central Excise Collector (Appeals) be not set aside. After hearing the parties, Joint Secretary exercising the revisional jurisdiction passed the impugned order dated 30-6-1975. In the impugned order it was stated by the Joint Secretary, Government of India that as the petitioners have been selling their products in the market as flats and declaring the same as flats, petitioner cannot take the protection of Indian Customs Tariff Guide 8th Edition and the trade notice and set aside the order of the Appellate Collector of Central Excise. Counsel for the petitioner has contended that in view of the law laid down by the Supreme Court in Dunlop India Ltd. v. Union of India – it is no more res integra that once an article is classified and put under a distinct entry, the basis of classification is not open to question. What has been contended by learned Counsel for the petitioner is that respondents should have taken into consideration the fact that so far as flats are concerned specifications laid down in Custom Tariff Guide and circulated under Board’s Circular No. 28/I&S Products/63 F.No. 12/31/62/CX. VII, dated 22-11-63 should be adopted in the said circular it has been mentioned at serial number 5 that if the width of the flat bar is less than 5 inches the same shall be considered as bar. Mr. Watel learned Counsel for the petitioner has contended that by a circular issued by the Secretary, Customs on 13-3-1968 which is at page 67 of the paper book it was specifically mentioned that whether a product is a bar or flat will depend upon the width and thickness as per the Board’s ruling both for the purpose of levy of basic customs duty and countervailing duty. In Dunlop India Ltd. v. Union of India (supra) the Supreme Court held that normally meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in usual course. But once an article is classified and put under a distinct entry, the basis of classification is not open to question. It was further held in Dunlop case that :-
“There is, however, no estoppel in law against a party in a taxation matter. In order to clear the goods for the Customs, the appellants’ Agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for, we do not attach any significance to this aspect of the matter pointed out by Counsel.”
3. It has been argued before me that what the petitioner is claiming is refund of the relevant one year in which the representation in question was made. I am in agreement with the order passed by Appellate Collector of Excise dated 5-7-74. In view of the trade notices of the respondents as well as circulars of the respondents as mentioned above the classification put by the respondent under Tariff Item 26AA(iii) was not proper. The same was to be treated as bars. The order of the Joint Secretary, Government of India is set aside. The petitioner shall be entitled for the consequential relief.
4. Petition is allowed. Rule is made absolute.