{"id":13597,"date":"1983-06-10T00:00:00","date_gmt":"1983-06-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-machinery-manufactures-vs-collector-of-central-excise-on-10-june-1983"},"modified":"2017-09-01T13:38:56","modified_gmt":"2017-09-01T08:08:56","slug":"gujarat-machinery-manufactures-vs-collector-of-central-excise-on-10-june-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-machinery-manufactures-vs-collector-of-central-excise-on-10-june-1983","title":{"rendered":"Gujarat Machinery Manufactures … vs Collector Of Central Excise on 10 June, 1983"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Gujarat Machinery Manufactures … vs Collector Of Central Excise on 10 June, 1983<\/div>\n
Equivalent citations: 1983 (13) ELT 1249 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 G.   Sankaran,   Member   (T)<\/p>\n
1.  The captioned appeal was initially filed as a Revision Application before the Central Government which, on the constitution of this Tribunal has come to it on transfer under the provisions’ of Section 35-P(2) of the Central Excises and Salt Act (hereinafter referred to as the Act) to be disposed of by this Tribunal as if it were an appeal before it.\n<\/p>\n
2.    The facts  of the  case  are  that the  Appellants are  engaged in the manufacture  of a commodity  called   ‘FRIT’   and  held  for the    purpose a Central Excise Licence in  Form  L-4 since 1975.    The Appellants filed Classification List No. 2\/80 on 5-5-1980 before the  proper Officer of Excise, classifying the goods under Item No.  68 of the First  Schedule to  the Act (CET, for short).   The main raw materials used in the manufacture of ‘FRIT’ are quartz, borax, potassium nitrate, soda,  zirconia,  alumina,  titanium   dioxide,  lithium carbonate, and cobalt oxide etc.    The manufacturing  process,  briefly   stated, is that the mixture of the above raw  materials is well ground  and then heated, in a rotary furnace for about 3 to 5 hours at a temperature of 1000\u00b0 to 1200\u00b0cl After it is melted, the material is dropped in a tub containing water for quench ing.    Small bits of blue shaped pieces are  formed which arc termed as’ FRIT’-The FRIT is used for glass lining of low carbon steel surface of reaction vessels-The Assistant Collector of Central Excise, Anand, by his order dated 9-1-1981, classified the product ‘FRIT’ (enamel)  under Item No. 68 CET.   On examination of the records of the case by the  Collector of Central Excise,  Baroda, for the purpose  of satisfying himself as to the  correctness,  legality or  propriety of the said order,  the  Collector  felt that  having regard  to  the   amendments made to Tariff Item  No. 23A   CET by the   Budget of 1979 (which took  effect from 1-3-1979) and having  regard to certain  technical authorities relied  upon by him, the product ‘FRIT’  correctly fell for  classification under Item  23A(4) CET with effect from 1-3-1979. He, therefore,  issued a notice dated   4-11-1981 to the  Appellants asking  them to show  cause why he  should   not  review the orders passed by the Assistant  Collector under Section 35A(2) of the Act as i stood then and set aside the said orders. After considering the submissions made in writing and those advanced in the. course of personal hearing, the Collector, by his order dated  30-4-1982, set aside the  Assistant  Collector’s orders dated 9-1-1981 classifying the product  ‘FRIT’ under Item No. 68 CET,   ordered the re-classification of the product  under Item No.   23A(4) CET’ and   directed the Appellants, to pay  excise duty  at the  rate   applicable  to  the said  Item  No. 23A(4) or the difference in duty, as the case may be.    Being aggrieved with the said orders of the Collector, the Appellants filed a  Revision Application (hereinafter  called the Appeal)   before the  Central  Government  which,  as  stated earlier, has come as transferred proceedings to this Tribunal.\n<\/p>\n
3.    The appeal was heard on 27-5-1983, when Shri N.D. Khosla, Consultant, appeared on behalf of the Appellants and Shri K.V. Kunhikrishnan, JDR, appeared  on  behalf of  Revenue.    At  the  out-set, Shri  Khosla, framed  the following two issues for determination by this Tribunal:\n  \n\n(i) What is the correct classification of the product 'FRIT (enamel)' manufactured by the Appellants--Item No. 68 CET as decided by the Asstt. Collector or Item No. 23A(4) as decided by the Collector ?\n \n\n<\/pre>\n
(ii) Assuming, without admitting, that the correct classification is as decided by the Collector, in his order legal, correct and proper in that it seeks to enforce payment of the differential amount of duty also in respect of the period prior to six months from the date of the order i.e. 30th April 1982 ? At worst, duty could be recovered in respect of the period from 30-10-1981 to 30-4-1982 i.e. the period of six months immediately preceding the date of the Collector’s order. This issue has arisen because no show cause notice has been issued for recovery of the differential duty for the past period. Even the review notice issued under Section 35A(2) does not mention this.\n<\/p>\n
4.    Turning to the first issue,  Shri  Khosla drew our attention to the Classification  List filed by  the  Appellants in which  ‘FRIT’ (Enamel) was declared by the  Appellants  as falling under  Item  No. 68  CET.    The said declaration was verified by the Excise  authorities and approved by the Asstt. Collector.   The Collector, in re-classifying the product under Item No. 23A(4) CET, has relied  on technical parlance in perference to  trade and commercial parlance.   This approach  was not;  correct particularly in the absence of any definition in the tariff entry which would have helped   in determining the classification of ‘FRIT’.    Shri Khosla submitted that there were many judicial pronouncements  laying down that in interpreting entries  in taxing statutes, resort should be had not to the  scientific or technical  meaning but to the meaning attached to them by those dealing in them in the commercial sense. The words of the item must be understood in the popular sense, i.e., the sense which people conversant with the subject matter with which the  statute is dealing would attribute to them for the obvious reason that fiscal statute affects manufacturers,  producers,   wholesalers,  retailers  and consumers.    In this connection, the following case-law was cited :-\n<\/p>\n
(1)    Dunlop India Ltd.           v. Union of India<\/a> (77) ASE 50097.\n \n\n(2)  Sales Tax Commissioner v. S.N. Brothers<\/a> -1973  ASE 78, 80.\n \n\n(3)  Nirlon Synthetics            v. Audim,  decided by Bombay High Court on  30-4-1970 in   miscellaneous petition No. 491\/64.\n \n\n(4)  Minerals & Metals          v. Union of India -1972 ASE, 2551, 2554 Company\n \n\n5.    Our attention was also drawn to  certain  other judicial  pronouncements, which had been cited before the Collector.    Shri Khosla submitted that the product 'FRIT' was not known as glassware to dealers  in   glassware.    He sought to  support  this contention by  relying  on certain  affidavits filed by certain persons dealing in  glass  and glassware containing averments to the effect that 'FRIT' was not considered as glass or glassware by traders in trade or commercial parlance.   Shri Khosla made particular mention of the Bombay High Court judgment in the case  of M\/s Swadeshi Mill Co. Ltd.  v.  Union of India and Ors., reported in 1982 E.L.T. 237  (Bom.)  wherein  the Court held that windscreens for motor  vehicles were  known  in  commercial parlance as motor vehicle parts and not as glass  or glassware and  therefore,  the correct classification was under Item No. 34A CET and not 23A(4).    The ratio of the judgment was applicable to the facts of the present case.    Since 'FRIT' was not known in commercial parlance as  glass  or  glassware,  it did not fall for classification under Item No. 23A(4) CET but would  appropriately be classifiable under the residuary Item No. 68 CET.\n \n\n<\/pre>\n
6. Shri Khosla then submitted that if it was held that ‘FRIT’ correctly fell under Item No. 23A(4) CET, the present case was one of short levy which would be governed by the provisions of Section 11-A of the Act. In terms of this section, recovery could be made of short levies only for a period of six months provided notice was issued within that time. Citing the decision of the Kerala High Court in the case of M\/s Good Shepherd Rubber Company reported in 1978 ELT. J-66, Shri Khosla submitted that the review notice issued by the Collector did not talk of the recovery of the amounts allegedly short levied and the Collector’s order in so far as it went beyond the ambit of the Show Cause Notice and demanded differential duty for the entire past period, was incorrect and illegal. Another submission of Shri Khosla was that re-classification of goods could only be prospective in effect. For this proposition, he relied on Central Board of Excise & Customs’ circular No. 8-CX-VI dated 15-3-1976 (Excise Law Guide by R.K. Jain) and to a Government of India’s decision reported in 1981 ELT 958. Therefore, Shri Khosla concluded that differential duty could not be recovered in respect of even six months prior to the date of the Review Order or Review Notice.\n<\/p>\n
7.   Appearing on behalf of Revenue, Shri K.V. Kunhikrishnan submitted that the manufacturers’ own pamphlets described the  product  as glass.    Once it was re-classified by a competent authority under Item  No. 23A(4) CET, the position was  that   was the  correct  classification  even   in  the  past  period and there should be no bar against recovery  of the  differential duty.    On the issue of classification,  Shri   K.V.   Kunhikrishnan,  submitted  that  there were different products known  as  ‘FRIT’,  glass,  enamel  ‘FRIT’,   FRIT  glaze, of which some are glass.    What the Appellants were manufacturing was  used for glass lining of reaction  vessels  and,  therefore,  the  product manufactured by them was glass.    The raw materials used by the appellants for  manufacture of ‘FRIT’ were the  same  as  those used   for  manufacture    of ordinary  glass. Referring to  Indian  Standard  Specifications    2717:1979,    2781:1975  and 1382 : 1961 and Encyclopaedia of Chemistry III Edition, edited by Clifford A. Hampel & Gessner G. Flawley  (P.   502-503),  Shri   Kunhikrishnan  submitted that while ‘FRIT’ was a specialised product,  it was not  ordinary  glassware. The affidavits filed by  the  Appellants  from   dealers  in   glass   and  glassware would be of no help in determining the  classification  of this  specialised product.    Similarly, the Bombay   High  Court’s  decision   on  windscreens would also not help  since  windscreen  is  a   special  toughened  glass interlined with polyester film and was  clearly  identifiable  as  a  motor  vehilce part.    In the result, he submitted that the orders passed by  the  Collector  were  correct and maintainable.\n<\/p>\n
8. Replying to Revenues’ arguments, Shri Khosla reiterated that commercial parlance should prevail and from this point of view ‘FRIT’ was not glass at all. The fact that the raw materials for ‘FRIT’ were the same as for ordinary glass, would not clinch the issue. While the CCCN could not decide the classification under the CET Schedule, it was relevant to note that ‘FRIT’ was excluded from Chapter 70 dealing with glass and glassware. 1SI 1382: 1961 defines ‘FRIT’ and this definition was in the Appellants’ favour. If even windscreens which were certainly made of glass were not classifiable as glass and glassware for levy of excise duty, ‘FRIT’ was certainly not classifiable as glass or glassware.\n<\/p>\n
9.    We have carefully considered the submissions of both sides.    The product manufactured by the appellants (which is  called  “Frit”) is described in their own literature as “Glass enamel”.    The  raw  materials used for  the manufacture are quartz,  borax,  potassium  nitrate,  soda,  zirconia,  alumina, titanium dioxide, lithium carbonate and cobalt oxide, etc.    It is not disputed that the same materials  constitute  the  raw  material  for the manufacture of ordinary glass.  The appellants describe themselves in the  technical  literature concerning the product as “pioneers in glass-lined equipment in  India”.    The equipments  are   distillation  units,  reaction   vessels,    columns,  diaphragms, valves, etc.    These  are  used   in   chemical,    petrochemical,  pharmaceutical, drugs, synthetic fibres, power, steel and  allied  process  industries.    The  chief merit of glasslined steel lies in the fact that  it is  insulated  against action  of acid and alkali arid that it is capable of withstanding  high  temperatures  upto 185\u00b0C and even 230\u00b0C.    Several layers  of glass  frit  of complex composition are, according to the technical literature, fused onto a metal  base,   making the glasslined equipment as tough as steel but inert  as  glass.    The  literature goeson to say that glass-lined  equipment  is  a  combination of  two  materials : glass and steel.   Thus it is clear that the product “glass frit” or “glass enamel” is used to impart glass lining to reaction vessels, etc. where  resistance to acids and alkalies is desired.\n<\/p>\n
10.    The question is whether such glass frit or glass enamel would come within the scope of the tariff entry “other glass and glassware  including tableware” appearing as Sub-item (4) of Item 23-A CET.    It is relevant to  note in this context that, prior   to  the  Finance  Bill,   1979,  which brought about a change in the nomenclature of the said Sub-item (4), it read  as  “other  glassware including  tableware”.    Apparently,   special  products like  glass frit or glass enamel are not goods of the type which are  stocked  and   sold by dealers in glassware.    “Glassware”,   according to  the Chambers  Twentieth Century Dictionary means “articles made of glass”.   The appellants have filed affidavits from certain dealers in glass and glassware to the  effect  that frit is not known as glass and glassware in trade parlance and  that   they  have not dealt with in frit.    Even without the aid of these affidavits, we see no   difficulty in  holding that frit is not “glassware” as understood  in  ordinary  trade parlance.    The question is whether it falls under the general description “other glass”.\n<\/p>\n
11.    Now, the expression \"other glass\" has to be read in the  context of the preceding sub-items of Item No. 23-A CET.    The full text of the   Item is re-produced below : -\n  \n\n\"23A, GLASS AND GLASSWARE.\n \n\n1.     Flat glass.\n Explanation : \"Flat glass\" includes sheet glass, wired glass and rolled glass whether in the form of plate glass, figured glass or in any other form.\n \n\n2.     Laboratory glassware.\n \n\n3.     Glass Shells, glass globes and chimneys for lamps and lanterns.\n \n\n4.     Other glass and glassware including tableware.\n Explanation : This Item does not include electrical insulators or electrical insulating fittings or parts of such insulators or insulating fittings.\"\n \n\n<\/pre>\n
Ordinarily, any glass not falling under Sub-items (1), (2) and (3) and also not of the type which can be classified as “glassware” should fall under the expression “other glass” in Sub-item (4). “Glass” is defined in the Chambers Twentieth Century Dictionary as “a hard, amorphous, brittle substance, a bad conductor of electricity, usually transparent, made by fusing together one or more of the oxides of silicon, boron, or phosphorus with certain basic oxides (e.g. sodium, magnesium, calcium, potassium), and cooling the product rapidly to prevent crystallisation”. The expression “other glass” is not a precise commercial term as, say, “glass sheets” or “glass plates”. Nor would one ask for “other glass” without specifying the nature of the glass one wants. And, in respect of special glass products, like glass frit or glass enamel, the buyer would have to specify the product, Shri Patel, Manager (Administration) of the appellant firm has filed an affidavit to the effect that frit is used either within the appellants’ factory or for supply to other manufacturers of glass-lined vessels and that frit has not been sold to any dealer or manufacturer of glass or glassware. It is not surprising that a special product, such as frit, is not dealt in by dealers in ordinary glassware. It is required only by manufacturers of glasslined equipment. The fact that frit is not known as “glass” and “glassware” to dealers in ordinary glass and glassware items would not, in our opinion, ipso facto detract from the position that it is a glass. Reference may also be made to the affidavit filed by Dr. Jayaraman, Manager, Research & Development Division in the appellants’ firm wherein he has averred that “frit” in the condition in which it is manufactured and marketed by the appellants is not glass and glassware, either in name or usage, that the product frit has to be mixed with other ingredients for further processing before it is used for glasslining steel vessels and that it cannot be used by itself for the said purpose, and that in the entire course of process of glasslining of vessels with frit: glass and glassware is not produced at any stage as goods which can be brought to the market for the purpose of purchase or sale. We have already taken the view that glass frit and glass enamel do not fall within the scope of the expression “glassware”. We may now examine in some more detail whether it would fall within the description “other glass”.\n<\/p>\n
12. Reference has been made by both sides to the Customs Cooperation Council Nomenclature (C.C.C.N.) and the position of glass frit with reference to the Nomenclature adopted therein. Chapter 70 of the CCCN as well as Indian Customs Tariff’ Schedule deals with glass and glassware. Heading No. 70.01 of the CCCN deals with “Waste Glass (Gullet); Glass in the mass (excluding optical glass)”. The Explanatory Notes under this heading appearing on page 919, Volume 2, says : “Glass (including vitrite and glass of the variety known as “enamel” glass) in the form of powder, granule or flakes is excluded “from the scope of the said heading 70.01”. The classification of such glass is indicated as 32.08. The heading in the Indian Customs Tariff Schedule corresponding to heading 70.01 is 70.01\/16. The heading No. 32.08 of the CCCN covers “prepared pigments, prepared opacifiers and prepared colours, vitrifiable enamels and glazes, liquid lustres and similar products, of the kind used in the Ceramic, enamelling and glass industries ; engobes (slips); glass frit and other glass, in the form of powder, granules or flakes”. The corresponding heading in the Indian Customs Tariff Schedule is 32.04\/12 and it covers, in specific terms, “glass frit and other glass in the form of powder, granule or flakes”. Relevant portions of the Explanatory Notes under Heading No. 32.08 of the CCCN (pages 484-485) are reproduced below :-\n<\/p>\n
“This heading covers a range of preparations used in the ceramic industry (china, earthenware, etc.), in the glass industry or for colouring or finishing metal articles.\n<\/p>\n
 X            X                X               X               X\nX            X                X               X               X \n\n \n\n(5) Glass frit and all other varieties of glass (including vitrite) in the form of powder, granules or flakes, whether or not coloured or silvered.\n \n\nThese products are used in the preparation of coatings for ceramic, glass and metal articles as well as for other purposes. For example, frit is used in the preparation of the vitrifiable products referred to in paragraph (2) above. Glass powder and granules are sometimes sintered to form discs, plates, tubes, etc., for laboratory use.\n X            X                X               X               X \nX            X                X               X               X \n\n \n\nWhen the products referred to in paragraph (5) above are in. forms other then powder, granules or flakes, they are excluded, and generally fall within Chapter 70. This applies in particular to \"vitrite\" and \"enamel\" glass in the mass (heading 70.01) to \"enamel\" glass put up in the form of bars, rods or tubes (heading 70.03), and to small regular spherical grains (microspheres) used for coating cinematograph screens, road signs, etc. (heading 70.19).\"\n \n\n<\/pre>\n
It is therefore, clear that for the purpose of classification under the CCCN and Indian Customs Tariff Schedule, ‘frit’ is considered as a form of glass which because of the scheme of the tariff, is specifically excluded from Chapter 70 (glass and glassware). Though it gets classified in Chapter 32 (Tanning and dyeing extracts tannings and their derivatives, dyes, colours, paints and varnishes, putty, fillers and stoppings ; inks), its very description, namely, “glass frit and other glass in the form of powders, granules or flakes” is evidence of the fact that frit is considered as glass. Apart from this, there is a clue or indication in the terminology employed in Item 23-A as to the scope of the said item. The explanation appearing at the end of the item provides that electrical insulators or electrical insulating fittings or parts of such insulators or insulating fittings are not included in 23-A CET. This is a good evidence of the position that but for the said exclusion, the articles described therein, namely, electrical insulators, etc., would have fallen within 23-A CET. Having regard to the nomenclature of Sub-items (1), (2) and (3), it is clear that these articles would have fallen only under Sub-item (4). These goods are not such as are stocked and sold by dealers in ordinary glass and glassware.\n<\/p>\n
13. Turning to the Indian Standards Publications, IS : 2781-1975 (Glossary of terms relating to ceramicware) defines ‘frit’ as “A glass which contains fluxing materials and is employed as a constituent in a glaze, body or other ceramic compositions”. IS: 2717-1979 (Glossary of terms relating to vitreous enamelware and ceramic-metal systems) defines ‘frit’ as “the product of the melted batch of enamel, often quenched in water or between rolls to produce grains or small flakes”, and ‘fritting’ as “the rapid chilling of the molten glassy material to produce frit”. It also defines “Glass-coated steel (Glass-lined steel, glassed steel)” as “Steel equipment coated with special type of glass or vitreous enamel to provide high resistance to attack by chemicals at elevated temperature and pressure”. The expression “frit” has been defined in 18:1382-1961 (Glossary of terms relating to glass industry) as “Calcined or partly fused materials which are subsequently melted to glassy state”. The appellants’ contention that the word “frit” occurs in the Glossaries of Terms relating to ceramicware and vitreous enamelware and that, therefore, it is not glass is not borne out by the definitions which we have just reproduced from these very Glossaries. The word also finds mention in the Glossary of Terms relating to glass industry. The contention that frit only when it is melted on steel vessels results in glasslining and, therefore, it is not glass by itself is also devoid of substance in the face of the definitions in the 1SI Standards. The fact that glasslining results only when frit is melted on steel vessels does not detract from the position that it is glass.\n<\/p>\n
It is clear from the foregoing discussions that the Indian Standards Institution recognises “frit” as a “form of glass”. For purposes of classification under the Central Excise Tariff, Courts have held that publications of the Indian Standards Institution are a good guide [Parry Confectionary Ltd., Madras-1980 ELT .468 (Mad.) ; Porrits and Spencer (Asia) Ltd., 1980 ELT 679 (Delhi) and Supreme Court in Delhi Cloth and General Mills Co. Ltd., 1977 ELT (J 199]. Therefore, the glass frit or glass enamel produced by the appellants are, in. our view, correctly classifiable under item 23A(4) CET and not under Item 68 CET.\n<\/p>\n
14. The appellants have cited several judicial pronouncements laying down that 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 the usual course and that in interpreting taxing statutes resort should be had not to the scientific or technical meaning, but to the meaning attached to them by those dealing in them in their commercial sense. As we have stated already, the scope of the term “ether glass” appearing in Item 23A(4) CET has to be understood not necessarily and only in the sense in which dealers in ordinary glass and glassware articles understand it, but having due regard in cases such as the present one (where the product is of a special nature and has a very limited market being of interest only to manufacturers of glasslined equipment and not to the general trade and industry) to the sense in which people requiring the product understand it. From this point of view, we have the guidance of not only the CCCN and the Indian Customs Tariff Schedule, but also the Indian Standards Publications, in all of which frit is described as a glass. With respect, therefore, we are of the view that the tests applied in the case law cited before us are not relevant in the present case. However, we would like to refer to one case on which particular stress has been laid by the appellants. In the case of Swadeshi Mills Co. Ltd. v. Union of India-1982 ELT<\/a> 237 (Bombay), the Hon’ble High Court of Bombay held that windscreen was a motor vehicle part as understood in commercial parlance and not glass as held by the Department. The test followed was whether windscreen could be purchased from a glass or glassware shop or a dealer in motor vehicle parts. Windscreens are recognizable parts of motor vehicles ; they are made of special toughened glass with an interlining of polyester film and, therefore, there can be no question of bringing windscreen under “other glass” in preference to motor vehicle parts. (Here, it has to be noted that with effect from 1-3-1979 the Nomenclature of Item No. 34-A CET has undergone a change inasmuch as from being a “not otherwise specified” item, it has become an item which specifies 15 motor vehicle parts and accessories : windscreen is not one of them). The competing items in the case before the Bombay High Court were 23-A (“glass and glassware”) and 34-A (“motor vehicle parts”). And, since windscreen was held to be a motor vehicle part, applying the commercial parlance test, the Court came to the conclusion that it fell under item No. 34-A. la the case before us, the competing items are 23-A and 68 (All other goods, not elsewhere specified”). As between these two items, it must be held that item 23-A [(Sub-item (4) to be precise)] is more specific. This is apart from the other considerations leading to this classification which we have adverted to. In our respectful opinion the ratio of the Bombay High Court judgment referred to above is not applicable to the facts of this case.\n<\/p>\n
15.  We have now to deal with the  appellants’  contention that if it  is held   that  ‘frit’   is  classifiable  under  Item 23-A(4) CET, recoveries of short-levied amounts of duty could be made only in respect of a period of 6 months preceding the date of issue of the show cause notice in terms of Section   11-A of the  Act.   The  submission  is  that, in the present case, no such notice was issued and, therefore, the Collector’s order in so  far  as  it  seeks  to  demand payment   of differential duty for the entire past period is incorrect and illegal. Section 35-A(2) of the Act empowers the Collector to revise  the  decision  or order  passed  by  a  Central  Excise Officer subordinate to him. Section 35-A (3)(a) provides : “No decision or order under this section  shall be varied  so as  to  prejudicially  affect any person unless such person is given a reasonable opportunity of making a representation and, if he so desires,   of being heard in his defence”. Section 35-A(3)(b) reads : “Where the Board or,  as  the  case may  be,   the  Collector of Central Excise is of opinion, that any duty of excise has not been levied or has been short-levied or erroneously refunded, no order levying or enhancing the duty, or no order requiring payment of the  duty so refunded,   shall  be  made  under this section unless the person affected by the proposed order is given notice to show cause against it within  the  time  limit specified in Section 11-A”.\n<\/p>\n
16.  Now, the show cause notice dated 4-11-1981 issued by the  Collector in terms of Section 35-A(3)(a) of the Act, while it calls upon the appellants  to show  cause  why  the  Assistant Collector’s order of 9-1-1981 (classifying ‘frit’ under item 68 CET) should not be set  aside  and  why  an  order as  may  be considered  appropriate  and  proper should not be passed, does not, in terms, contain a clause which could be said to  be in  the  nature  of a  show  cause notice  as  contemplated  by  Section 35-A(3)(b). In his order dated 30-4-1982, however, the Collector while setting aside  the Assistant  Collector’s  order  of 9-1-1981   and  holding that  ‘frit’  is correctly  classifiable under item 23-A(4) CET, has ordered that the appellants shall pay duty at the appropriate rate on frit manufactured and cleared by them, or the difference in duty,   as  the  case may  be.   In   this  context,   reliance has been placed by the appellants on the decision of the Kerala High Court in Good Shepherd Rubber Co. v. Inspector of Central Excise  and Ors.  [1978 ELT  (.166)]. The Court held in that case that demand of short-levy without show cause notice is a violation of Rule   10.  It was  a  case where the Department sought to recover short-levies without issue of a show cause notice under Rule 10 but seeking to rely on Rule 173-I which enables  the proper officer to assess on the basis of the assessee’s return. The facts  of the  present  case are not on all fours with the one before the Kerala High Court and hence the ratio of this decision  would  not,  in  our  opinion, apply except to the extent that a show cause notice is  a must for demanding payment of short-levies.\n<\/p>\n
17.  We must, at this stage, advert to another contention of Shri  Khosla and  that  is that  decisions reclassifying goods are prospective in effect.   He relied, on  Govt.  of India’s  decision in re : Navin Industries reported in 1981 ELT 958. In this case, Govt. of India,  while  disposing of a revision  application, relied on an Andhra High Court decision in Southern Steel Ltd. v. U.O.I. [1979 ELT (J-402)]. The Court had taken the view that the mere fact that the authorities had not questioned the position taken up by the petitioner (i.e.  that  he  would not be liable to excise duty and his position was accepted for a number of years by  the Department)  would not prevent them from levying  duty  whenever they came to the conclusion that the description in the classification list is not correct and according to the correct description duty is leviable. This is not of direct relevance to the present case. A decision given by a competent authority on the classification  of goods is,  in our view,  only a statement of what, in his opinion, the law was and always has been (assuming that the nomenclature of the relevant item or items in the tariff has not undergone any change). Therefore, the proposition canvassed by the appellants that decisions on tariff classification are only prospective in nature does not appeal to us, especially in the absence of any direct judicial pronouncement on the subject being brought to our notice. Recoveries of short-levied amounts would, however, be governed by the provisions regarding limitation.\n<\/p>\n
18.  The show cause notice dated 4-11-1981, no doubt, did not, in  terms, ask  the  appellants- to   show cause why recoveries of short-levies in respect of the past period should not be effected. It is  probable  that  the  Collector  did not  do  so since the question of recovery in respect of past period would arise only after the basic issue, viz. the class fication of frit, was adjudicated  upon. We do not know. Be that as it may, once the Collector came to the conclusion and ordered reclassification of frit under item 23A(4)   CET,  he was  right in demanding payment of differential duty.  However, recoveries of such amounts can be made only in respect of a period of 6 months preceding the date of the order,   i.e.   30-4-1982, as determined with due regard to the provisions of Rule 11 or Section   1 l-A  as  applicable  to  each  assessment. The   Central  Excise authorities   shall  re-calculate  the  amount  of short-levy in the light of these observations and communicate the figures to the appellants within  3  months from the date of communication of this order.\n<\/p>\n
19.  Subject only to the relief granted in the foregoing para, the appeal  is otherwise rejected.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Gujarat Machinery Manufactures … vs Collector Of Central Excise on 10 June, 1983 Equivalent citations: 1983 (13) ELT 1249 Tri Del ORDER G. Sankaran, Member (T) 1. The captioned appeal was initially filed as a Revision Application before the Central Government which, on the constitution of this Tribunal […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-13597","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nGujarat Machinery Manufactures ... vs Collector Of Central Excise on 10 June, 1983 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gujarat-machinery-manufactures-vs-collector-of-central-excise-on-10-june-1983\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gujarat Machinery Manufactures ... vs Collector Of Central Excise on 10 June, 1983 - 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