ORDER
P.C. Jain, Member (T)
1. Brief facts of the case are as follows :
1. The appellants herein are manufacturers of stainless steel kitchen sinks. They filed a classification list dated 25-7-1991 pursuant of Budgetary changes of 1991-92. They claimed the classification of the said product under Tariff Heading 73.23 CETA, 1985 being kitchen article and also claimed exemption under Notification 175/88-C.E., dated 13-5-1988 as amended by Notification 63/91-C.E., dated 25-7-1991. Assistant Collector by a speaking order dated 18-10-1991/30-10-1991 upheld the contention and declaration of the aforesaid goods as classifiable under Tariff Heading 73.23 and entitled to benefit of the aforesaid notification.
2. Collector of Central Excise, Bombay-IE, excercising his power under Section 35E directed filing of an application before the Collector (Appeals) for classification under Tariff Heading 73.24 and denial of benefit of the said notification. The impugned order upholds the application (appeal) of the Revenue. Hence this appeal before the Tribunal.
3. Learned advocate, Shri A.V. Naik for the appellants has urged that the Collector (Appeals) has applied his own notion of what ‘sanitaryware’ and is without any evidence in support of such a notion and without taking into account the evidence of commercial parlance in the form of affidavits of various dealers throughout the country and also without taking into account the authoritative ruling of the Apex Court on meaning and scope of the expression ‘sanitaryware’. In this connection he draws attention to various letters, opinions and catalogues etc. available at pages 78 to 94 of the paper book submitted by the appellants. He also draws attention to the Supreme Court’s observations in the case of The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. G.S. Pai & Co. reported in 1980 (45) STC 58. In order to appreciate the controversy before the Apex Court, we reproduce relevant extracts :-
“That takes us to the second question in regard to taxability of the turnover of sales of G.I. pipes made by the assessee. The revenue contended that G.I. pipes fall within the description ‘water supply and sanitary fittings’ in entry 26A so as to be exigible to tax at the higher rate of 7 per cent, while the assessee contended that they are not covered by this expression and are, therefore, taxable only at the lesser rate of 3 per cent under Section 5(1)(ii) of the Act.-The determination of the question turns on the true interpretation of the words ‘water supply and sanitary fittings’. So far as the expression ‘sanitary fittings’ is concerned, it has received judicial interpretation by this Court in State of Uttar Pradesh v. Indian Hume Pipe Co. Ltd., wherein it has been laid down that ‘sanitary fittings’, according to the popular sense of the term, mean such pipes or materials as are used in lavatory, urinals or bath-rooms of private houses or public buildings. The G.I. pipes sold by the assessee would, therefore, fall within the description of ‘sanitary fittings’ only if it can be shown and the burden of so doing would be on the revenue, that they were meant for use in lavatories, urinals or bath-rooms. It does not appear that the attention of the assessee and the tax authorities was drawn to his aspect of the question and hence no material was brought on record which would throw light on the question as to what was the use for which the G.I. pipes were meant. If the G.I. pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be ‘sanitary fittings’. This is, however, a question which has not been considered by the revenue authorities and the case would, therefore, have to be remanded to the App. Assistant Commissioner for the purpose of determining whether having regard to the meaning which this court has placed on the expression ‘sanitary fittings’, the G.I. pipes sold by the assessee fall within that description.
But the revenue contended that even if the G.I. pipes are not ‘sanitary fittings’ within the meaning of that expression, they would still fall within the description ‘water supply… fittings’. Now, it must be remembered that the category of goods in entry 26A is not described as ‘water supply pipes’ but as ‘water supply and sanitary fittings’. The use of the word ‘fittings’ suggests that the expression is intended to refer to articles or things which are fitted or fixed to the door or walls of a building and they may in a given case include even articles or materials fitted or fixed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the septic tank, but they cannot include pipes laid underground for carrying water supply. Moreover the words ‘water supply … fittings’ do not occur in isolation, but they are used in juxtaposition of the words ‘sanitary fittings’. The entire expression ‘water supply and sanitary fittings’ is one single expression and the words ‘water supply… fittings’ must receive colour from the immediately following words “sanitary fittings”. We are, therefore of the view that expression water supply … fittings’ in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another.”
3.2. Learned advocate also draws attention to the HSN Explanatory Notes relied upon by the lower appellate authority. He submits that HSN headings & sub-headings are not aligned with CETA headings & sub-headings in so far as Headings 73.23 & 73.24 are concerned. In this connection CETA Headings 73.23 & 73.24 are reproduced. (There are no sub-headings of Headings 73.23 & 73.24 of CETA :-
"73.23 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like of iron or steel. 73.24 Sanitaryware and parts thereof, of iron and steel. Other cast articles of iron or steel". However, under HSN Headings 73.23 & 73.24 there are many sub-headings. One sub-heading i.e. 73.24.10 mentions "sinks and wash basins, of stainless steel" under the Heading 73.24. Explanatory Note under Heading 73.24 at page 1036 of HSN reads as - "This heading comprises a wide range of iron and steel articles, not more specifically covered by other headings of "Nomenclature, used for sanitary purpose." Since 73.23 covers more specifically the goods 'kitchen sink', Heading 73.24 is ruled out. He urges that the HSN Explanatory Notes also support the appellants.
4. Learned SDR, Shri B.K. Singh, on the other hand urges that the affidavits are all stereotyped and look as if solicited. Not much reliance can be placed on such affidavits. Drawing attention to catalogue of ‘Beanbond’ at page 84 of the paper book with the appeal, produced by the appellants themselves, he points out to the following message “Makers of India’s Widest Range of Sanitaryware bring to you…. A choice of Exquisite Kitchen sinks in polymer concrete, the most modern material”. He submits that this evidence proves that in commercial parlance, kitchen sinks are known as ‘sanitaryware’. He also points out that it is common knowledge that drain pipes connected with the kitchen sink takes out the dirt and the dirty water after washing the vegetables and utensils in the kitchen. The drain pipe ultimately is connected to Municipal Committee’s sewerage. Apex Court’s judgment in G.S. Pai & Co. has no application to the present context. The Court was considering the single expression “water supply and sanitary fittings” and not the expression “sanitaryware”.
4.1 We have considered carefully the submission urged from both sides. We are inclined to agree with the learned SDR that Supreme Court’s judgment in the case of G.S. Pai & Co. has no application to the contextual setting of CETA 1985. Apex Court’s ruling was in the context of the assessee’s contention that the G.I. pipes under consideration were to be laid underground for water-supply and were not for “water supply and sanitary fittings”. No contention was raised from either side that the water-pipes in that case were meant for draining out the dirt and dirty water from the kitchen sink and then on to sewage. In our view, Apex Court’s ruling is to be considered as an example of sanitary fitting when it spoke of such “pipes or materials as are used in lavatories, urinals or bath-rooms or private houses or buildings”. Catalogue of ‘Beanbond’ pointed out by the learned SDR and brought on record clearly points out that ‘kitchen sink’ is available in the shops dealing with sanitaryware as well as in various appliances & equipments. The appellants do not dispute that ‘kitchen sink’ is meant for washing the vegetables and utensils. It is essentially a wash basin for vegetables & utensils and fitted in the kitchen for the sake of convenience. Purpose of washing as served by a wash-basin in a bath-room is equally served by a kitchen sink. Another feature to be noticed in Heading 73.23 is that ‘kitchen’ articles are associated with ‘table’ articles and other household articles. Articles for table, it is to be remembered, are essentially movable articles. ‘Kitchen’ articles covered by this heading should be movable articles and not articles required to be fixed to a platform like ‘kitchen sink’. HSN Explanatory Note would be a good guide in the instant case because the Headings 73.23 & 73.24 of HSN & of CETA are fully aligned. If ‘kitchen sink’ is specifically covered in a sub-heading 73.24.10 of HSN, we are inclined to agree that it would fall under Heading 73.24 of the CETA, 1985.
5. In view of the foregoing discussion, we reject the appeal.