ORDER
H.R. Syiem, Member (T)
1. The department assessed the self-starter under item 30 of the Central Excise Tariff, because they held that it was an electric motor. The manufacturers, M/s. Sahney Paris Rhone Ltd. asked that it should be assessed under item 68, because they say this is the most suitable item, since item 34A which covers parts of motor vehicle, does not include such motors.
2. At the hearing, the learned counsel for M/s. Sahney Paris Rhone Ltd. presented five propositions. They are reproduced below and will be discussed in the appropriate places :-
1. The Appellate Collector’s order is bad in law because :
(a) It ignores the Trade understanding that a “Self Starter” is not an electric motor.”
(b) It is based on personal observations which cannot be made the basis of classification.
(c) It ignores the 1SI specifications which are a piece of evidence showing that “Self Starter” is a distinct commodity from “electric motor.”
2. In view of the judgment of the Supreme Court in Atul Glass and Bombay High Court judgment in Sahney Steel & Pressworks Item 34A read with item 68 is a specific entry which must prevail over a general entry i.e. Item 30. Hence “Self Starter” cannot be classified under item 30.
3. Under cognate legislation “electric motor” and “starter motor” and “starter motors” are considered as separate goods :
Customs Tariff Act’75 Heading 85.01 “electric motor”
Heading 85.11 “starter motor.”
Customs Tariff Act’86 Heading 85.01 “electric motor.”
Heading 85.11 “starter motor.”
4. The IDR Act also recognises that “electric motor” and “starter motors” are distinct products meriting separate classification and industrial licences.
5. The Durden of proving that “starter motor” falls under Item 30 has not been discharged by producing any evidence and so the appellants’ classification has to be accepted.
3. The learned counsel sought support from court decisions; principally the decision of the Supreme Court 1986 (25) ELT 473 re : Atul Glass Industries. He read extensively from this judgment drawing special attention to the court’s conclusion that a glass mirror was not glass and glassware assessable under Item 23A, because the product was identified by the people who use the glass mirror not as a glassware but as a glass mirror. The learned counsel read from paragraph 8 the observation of the court :
It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror. The basic or fundamental character of the article lies in its being a mirror.
4. The court then went on to quote its own remarks in the DCM dgment that :
In determining the meaning or connotation of words and expression describing an article or commodity the turnover of which is taxed in a sales tax enactment, if there is one principle fairly well settled it is that the words or expressions must be construed in the sense in which they are understood in the trade, by the dealer and the consumer.
5. In this judgment, went on the learned counsel, the attempt by the department to draw comparisons with the BT N in respect of glass and glassware to show that it was the favoured heading for mirror, was not accepted by the court, because it said that the Central Excise tariff was not modelled on the BTN.
6. If we read this judgment critically, we fill find some hidden features which easily go unnoticed. The dispute was the assessment of mirrors which the central excise department wanted to assess under Central Excise tariff Item 23A for glass and glassware. The manufacturers, however, claimed that mirrors were not glass and glassware and did not fall under any of the sub-headings like (1) flat glass, (2) laboratory glassware, (3) glass shells, glass globes, chimney for lamps and (4) other glass and glassware including table ware, but fell under tariff Item 68 which covered all other goods not elsewhere specified. In paragraph 7, after discussing certain details relating to the matter and the past history of the dispute and the practices of the department, the court set out to examine the merits. The merits indicated to the mind of the Hon’ble judges that the original glass sheet underwent a complete transformation when it emerged as a glass mirror. What was a piece of glass simpliciter was now a commercial product with a reflecting surface. Into the process of transformation, had gone successive stages of processing with chemicals, washing, coating, drying etc. etc. The court observed that the evolved product was completely different from the original glass sheet and what was once a glass piece in its basic character had been reduced to a mere medium. This was clear if regard was had to the fundamental function and qualities of a glass mirror. It would be noted that not only glass had reflecting capacity; copper mirrors had been known from the dawn of history and in modern times acrylic sheets were used for manufacturing mirrors. Glassware meant merchandise made of glass and understood in its primary sense a glass article. Thus, a glass bowl, a glass vase, a glass tumbler and so on were all articles of which the primary component was glass; they were nothing more and nothing else.
7. This, in my opinion, is the true essence of the court’s determination of the dispute before it. There were two items competing for the glass mirror : an item glass and glassware and another item goods not elsewhere specified. By the application of chemicals and reflecting coatings, varnishing, polishing, drying etc. the simple glass sheet ceased to be a glass or glassware and turned into a mirror; and a mirror is not one of the products listed under the glass and glassware item of the tariff. The court ruled that the glass mirror had ceased to be a glass simpliciter and had become a product with a reflecting surface. There is further elaboration by the court in paragraph 8.
8. The buyer of the glass mirror buys it because it performs a specific function and supplies a need in his life, and that need is image reflection which enables him to see himself when he dresses etc. The function of the article is not as a glass but as a glass article which reflects the purchaser’s image for specific functions during dressing.
9. By this simple event, the glass was propelled out of its original coverage to seek refuge elsewhere : and the only refuge for it was tariff item 68. The court did not say that after it became an image-reflecting product, the glass became a goods not elsewhere specified; it said only that glass mirrors could not be classified as glass and glassware in tariff item 23A and must, therefore, fail under tariff item 68 (paragraph 12). It was not because item 68 became more adequate or more appropriate, but because item 23A became unsuitable for glass mirror. The enquiry of their lordships of the Supreme Court was not towards how item 68 was a better item, but towards how item 23A had ceased to be a suitable lodging for glass mirrors.
10. M/s. Sahney Paris Rhone say their self-starter is not an electric motor. It is a part of a motor vehicle and since it cannot be classified in 34A, it must go to item 68. The ruling of the Supreme Court in the Atul judgment will not support the assessment of self-starter under item 68. Atul found the glass mirror, by a detailed process of logical induction, to be not a glass or a glassware. This was the spirit and the substance. The glass mirror had to leave its hearth and home to find another shelter where it could; the court found one for it in item 68.
11. The self-starter has undergone nothing to compel its departure from the electric motor heading. Indeed, contrary to Sahney Paris Rhone’s belief, the self-starter would not be assessable under item 34A; not even before its 1979 amendment. That head ran thus : Parts and Accessories of Motor Vehicles Not Other Specified. This head, before the 1979 amendment, covered all motor vehicle parts; but the parts it covered must not be specified elsewhere. Since the self-starter is an electric motor, it could not have gone to item 3’fA because it is a part of a motor vehicle specified otherwise or elsewhere i.e. in heading 30. This is the ratio in paragraph 7 of the Bombay High Court’s judgment in writ petition No. 326 of 1981 Sahney Steel and Press Works v. Union of India.
12. It is, of course, argued on behalf of Sahney Paris Rhone that a self-starter is not an electric motor and that the trade and commercial public do not call it an electric motor. In evidence, two affidavits were produced : one by Vasantlal T. Paurana, a partner of Deepak Automobile, Hyderabad, and another by Pramodichandra Modi, partner of Premier Agricultural Engineering Corporation, Secunderabad. According to the learned counsel, these affidavits prove that the trade does not accept self-starters to be electric motors. But, as the learned SDR pointed out, the first gentleman swears that he does not deal “in motors commonly known as such, excepting the above said self-starters used for starting the diesel engine trucks.” It is evidence that the person deals only in one kind of motor, the self-starter motor. The exception would have been unnecessary if a self-starter was not an electric motor a simple denial of dealing in all electric motors would have given the correct picture. But since a self-starter is an electric motor a simple denial would be wrong since the person did deal in one kind of motor the starter motor. The learned SDR was, therefore, correct when she pointed out that the trade understood the starter motor as an electric motor, though different from other electric motors.
13. The second affidavit is not as forthcoming as the first one but it too does seem to have the thought at the back of its mind that a self-starter is a motor. It talks of dealings in motors which cannot be used for starting automobile engines and that if any one wanted a starter motor, he would have to try a dealer in automobile parts. The affidavit, let it be noted, speaks of a starter motor, (self-starter). A self-starter is thought of and spoken of as a motor.
14. The learned counsel, however, opposed the classification of the self-starter as an electric motor; he said it was not an electric motor. It was merely meant to crank the motor vehicle engine : when the engine starts, the starter stops. The starter has short bursts of activity and does not work like an electric motor. The ISI specifications will prove that the motor starter is different and distinct from an electric motor. The standards are 1S:3141-1965 for Starters for Automobiles, and IS:325-1978 for Three-phase Induction Motors. A starter, according to IS:3141- 1965, is a special DC electric motor capable of delivering high torque for short periods of time and to be used as a cranking device. Its period of activity has to be limited because it needs only to start the motor car engine. A normal motor can perform over long periods of time and is designed for just such sustained performance.
15. The fact of the matter is that the self-starter, or starter motor or self-starter motor is nothing but an electric motor. Its principle of construction contains nothing to distinguish it from an electric motor and the learned counsel was not able to point to any. Like all electric motors, the starter motor has, field windings, armature, rotors and stators. It has a central rotating member, the rotor, and the outer non-rotating member, the stator. It is the shaft in the central rotating rotor that carries the toothed gear that, on activation, engages the engine flywheel to crank the engine. This activation is caused by the entry of a DC current which causes an electromagnetic moment of force, which in turn exerts torque. Since only the rotor is free in its bearings, the torque forces it, rather than the rigid stator, to rotate, causing the central shaft to turn and thus to deliver its output of mechanical energy. This is the basic principle of all electric motors, though there are variations in construction. In some motors, the rotor is outside the stator – then it is the outside member that rotates.
16. A simple illustration of the construction of the self-starter motor is given here :
17. The motor receives its current of electrical energy through the solenoid, a relay mounted on the motor. When the current enters the solenoid, the soft iron core shaft is pulled to contact the plate behind it. T his does two things. One, the lever is pulled back at its top, thus pushing it forwards at its lower end; this forces the toothed gear pinion towards the flywheel to mesh with it; and two, the circuit to the starter motor is closed. When the toothed gear meshes with the flywheel, and a split-second later, the starter motor receives current, the rotor shaft spins, and the toothed gear riding on it, and now engaged with the flywheel, also spins, cranking the engine. When the engine fires, its speed rises higher than the speed of the motor and so the toothed gear is thrown back to its original position on the helical splines of the starter motor’s rotor shaft. This is a much simplified description of how the starter motor works – the actual working has many other details, but the purpose is only to illustrate the basic fact that the starter motor is an electric motor, and works like an electric motor. It operates only on electricity; it delivers output viz. rotary motion, which turns a motor vehicle engine to start it. It is true that it does not run for long periods : but it does not need to, because of the application; and because of its application, it is not built for long continuous operations. For one thing, it does not have any cooling arrangements built into it as ordinary electric motors have. But not all motors are built the same way. Some motors have to operate intermittently; Ors. work only for a few minutes or a fraction of a minute. While still Ors run for longer periods, as when they turn machinery in factories.
18. Like all rotating machineries, a motor is built on the principle of one winding turning in another, without contact between the two, to be excited by electricity into a particular output. In the electric motor, as in the self-starter motor, the exciting agent is the electricity supplied from an external source (like a storage battery) which produces a magnetic field. The lines of this magnetic field cut or are cut by windings on the free member (the rotor) causing it to move. Since it can move only in one direction viz. circular, the whole winding on the rotor shaft is turned, causing the rotor to spin. This spin of the rotor is the output of the motor that is harnessed to do work. The work of a motor is to turn and provide movement to other machinery to which it is coupled (splined shaft, belt and pulley, chains and sprocket etc.); a self-starter’s work is to provide movement to an internal combustion engine till its internal motive power comes into play i.e. the engine fires.
19. A man’s need for an image reflector is supplied by a glass mirror; his need for a device to crank his automobile engine is supplied by a motor – the self-starter motor. The self-starter cannot do the work unless it operates on the principle of a motor. No mechanical device can provide the service of starting an automobile engine except a motor and let me repeat, all people who know the subject, traders, engineers, mechanics, the Indian Standards, engineering text books, call it a motor. And like all motors, it has all the components and parts of a motor – it is constructed on the same principle as a motor and it performs the same work as a motor; it lives the life of a motor.
20. The book AUTOMOBILE GUIDE BY FREDERICK E. BRICKER was quoted in support by the SDR during the arguments. Though the learned counsel for Sahney Paris Rhone dismissed it as a book for mechanics and professional machine operators, it contains valuable guidance to our understanding of the motor car and its parts. In fact, the book is aimed at, among Ors, the owner, who, more often than not, is a layman who knows .little about an internal combustion engine and its parts. The book has a chapter on Starters and Generators (Chapter 7). It says that the starter is a DC motor capable of developing a high torque with electric current supplied by the storage battery. And it is not for nothing that IS:3141-1965 describes a starter as a special DC electric motor’ capable of delivering high torque for short periods of time and to be used as a cranking device. Paragraph 0.3 in the Forewords speaks of automobiles in which “the engine is started by an electric motor fed from a 6-, 12- or 24-volt DC supply.” Note the words electric motor. The self-starter is an electric motor used as a cranking device in a motor vehicle.
21. The Bombay High Court has shown how, in a dispute like this on, we should proceed. Paragraph 7 of its judgment in writ petition No. 326 of 1981 has these sentences :
I am referring to some of these items to indicate the general scheme of the Schedule. Firstly an item must fall under a particular class to which it belongs. If the item is specifically mentioned under that class, the duty shall be as mentioned therein. If it is not specifically mentioned, then the question is as to whether an item belonging to that class as such has been provided elsewhere, and if it has been so provided, the duty will be as per such specification. If it is not so provided, then it must necessarily fall under the residuary item, being Item 68 of the Schedule. Therefore, when we look at Item 34A, the item deals with “Parts and accessories of motor vehicles”. But if there is any part of motor vehicle provided elsewhere, that item would not fall under item 34A. Mr. Rana drew my attention to the item relating to “Tyres” which comes under Item 16. Under this heading, sub-item (1) deals with “Tyres for motor only” and that is how it has been specifically provided for. Therefore, if one reads Item 34A with Item 16 it becomes clear that “Tyres” as part of motor vehicles has been otherwise specified under Item 16. But certainly, starter armature as part of motor vehicles has not been provided elsewhere and therefore, it must necessarily be classified under item 34A.
If there is elsewhere in the tariff, an item for a part, that part will not fall under item 34A. The starter armature had not been provided elsewhere, so it would have to be classified under item 34A. For the same reason, motor vehicle tyres must fall under item 16, though they are without doubt, parts of a motor vehicle.
22. All the indicators, common parlance and technical parlance, point in the direction of a motor; a motor for cranking an internal combustion engine. Unlike the glass mirror, the motor has not had anything done to it to eliminate it from the motors head 30. The glass, said the hon’ble Supreme Court, lost its glass character, and became a reflecting medium, to fulfil the need not for a glass but for a mirror. The self-starter fulfils the need for a motor and that is what it does when it is installed in the engine compartment of the motor vehicle. Its load is the engine which it brings to life by turning it. All motors have this function : to take a load and to turn it. When the starter motor fires the internal combustion engine into life, it needs to turn it only long enough: till the internal combustion takes over to run it without any further help. Other motors are designed to run machineries for long periods of time : these are built correspondingly to enable them to withstand prolonged operation and other consequent stress. But in both cases, the principle is the same : only the construction and the details may be different.
23. It was argued that the HSN tariffs for both customs and central excise show electric motor and starter motor as didferent and separate goods. They are covered in the two tariffs under heading 85.01 and heading 85.11, respectively. These are cognate legislations and should be understood as indicating that one is to be assessed differently from the other. But the difference is largely illusory. Both are under the main chapter 85 which covers electrical machinery. And in both headings the starters are called motors; the customs tariff heading 8511 .40 sets out a sub-heading for “starter motors”, but central excise heading 8511.00 lists them in a collection with magnetos, ignition coil, sparking plugs etc. That a self-starter motor is different from a motor for, say, turning a machine tool is quite correct; but it is nevertheless a motor, and in the absence of a specific head for self-starter motors as in the HSN, the most appropriate head for it is a head for electric motors, all sorts of electric motors.
24. The CCCN has useful hints/clues on this. In chapter 85, under (II) Electric Motors, it says that with the exception of starter motors and motors of chapter 97, the heading i.e. 85.01, covers all types of electric motors. If a starter motor is not a motor, there is no point in excluding it from a head for motors : it is automatically excluded.
25. The HSN, in fact, lends support to the assessment of starter motors as motors under item 30. Both the customs and the central excise tariff today are based on this code and chapter 85 would not take in a starter motor except for that fact that it is an electriced starter motor. The old central excise tariff did not have these detailed comenclatures. But even so, the rule always is that an article must bb recessd under : the heading most appropriate for it. It would not do to assess a commodity just anywhere our fancy takes us. And a further rule accepted by every one is that the particular must take precedence over the poperal A starter motor is nothing but an electric motor. In this condition, there is an item more specific and particular for it under item so which covers ELECTRIC MOTORS, ALL SORTS, AND PARTS THEREOF. Not this sort nor that, but all sorts. A starter motor is one sort of motor; there are scores more. But all of them must be assessed undor item 30. Item 68 does not nominate motors or any other things. We have seen how item 30 should take precedence even over 34A Parts and Accessories of Motor Vehicle, not otherwise specified. How much more easily should it take precedence over 68.
26. The learned counsel for M/s. Sahney Paris Rhone laid emphasis on the Supreme Court injunction in the Dunlop decision 1983 ELT 1566 (S.C.) and relied by the Bombay High Court in 1981 ELT 432 Advani-Oerlikon Ltd. The court held that the meaning of articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them; that technical and scientific texts offer guidance only within limits. This is in paragraph 36. We have seen how traders with two affidavits understood starter motors. To them, the starter motors were motors, but different from other motors. But let us not overlook that the court also enjoined in the same paragraph :
But once an article is classified and put under a distinct entry, the basis for the classification is not open to question.
27. The article self-starter motor is classified and put under an entry for all sorts of electric motors, and, therefore, its classification under that entry is not open to question.
28. At the hearing, we asked the learned counsel how self-starter motors were assessed before item 34 A was amended in 1979. He said he did not have the information.
29. Assessment of the starter motor is more appropriate in item 30, the motors head, than in item 68 the head that names no articles, and certainly not motors. The starter motor behaves like a motor, works like a motor, and fulfils a man’s need for a motor to crank his car engine. The motors head (item 30) is the most close-fitting item of all possible contenders. Item 34A would not have taken it because it excluded all motor vehicle parts specified elsewhere. With its amendment in 1979, it shed the role even of a possible claimant. And item 68 is an item that never stirs out; like a spider, it just sits in its web and waits for a fly to fall or blunder into it. It does not contest nor does it enter the list. For this reason, it never knows what may form its next meal – it may be a machine; it may be a chemical; it may be an aeroplane. Its receipts are all handouts – things nobody wants; things nobody will accept. But as long as a thing can find a haven, a sanctuary “elsewhere”, it will not, cannot, enter 68.
30. It is not possible to support assessment of the self-starter motor under item 68. Assessment under item 30 is correct. In confirm it.