TMI Blog1996 (2) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice was issued on the ground that the goods were assessable under Heading 8209.00. This notice was in respect of March, 1988 and did not cover clearance of April, 1988 which were allowed after giving the benefit of the exemption Notification in accordance with the earlier approval. 6. Again on 28-11-1988 another show cause notice was issued for the period 1-5-1988 to 3-10-1988 on the ground that the item was eligible for benefit of Notification No. 108/88 because the segments were specifically not covered under that notification. 7. This show cause notice was subsequently withdrawn and the demand was dropped by the Assistant Collector s order dated 17-4-1989. 8. In spite of it another show cause notice dated 16-1-1989 was issued to the appellants in the context of the classification filed on 13-6-1988 asking the appellants as to why the benefit of the exemption should not be denied. By the same notice it was ordered that in the meanwhile the goods may be cleared by making provisional assessment. 9. On 9-3-1989 yet another show cause notice was issued for the period 1-11-1988 to 19-1-1989 on the ground that benefit of Notification No. 108/88-C.E. was not available. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise (Appeals), and until the Collector (Appeals) set aside and modify that order, the Department was bound to follow the Assistant Collector s order dated 17-4-1989 and there is no question of directing any provisional assessment at this stage. 19. This direction contained letter dated 10-8-1990 was modified later by the Collector to the extent that the provisional assessment should be allowed at the lower rate. 20. Thereafter, 4 show cause notices were issued on 25-9-1990, 30-1-1991, 10-4-1991 and 12-8-1991 relating to the period 1-4-1990 to 31-8-1990, 1-9-1990 to 31-12-1990, 1-1-1991 to 31-3-1991 and 1-4-1991 to 23-7-1991. It was their contention that all these 4 notices were without jurisdiction and invalid for the first place the Assistant Collector s order dated 17-4-1989 was still in force and there was no stay of the operation of this order. Secondly, the Department by itself in the notice dated 10-8-1990 directed provisional clearances and therefore, unless final assessments had been made there was no question of any demand. On 28-8-1991, the Collector (Appeals) rejected the Department s appeal against the Assistant Collector s order dated 17-4-1989 and endorsed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff Heading, Note 2 to Chapter 82 and the terms of the notifications remains the same. The change occurred in the notifications only on 25-7-1991 after the period to which demands raised. In these circumstances, the question of different interpretation of the notification at different stages during the relevant period could not arise. There was no new development warranting any change in the interpretation or the findings given in the orders dated 17-4-1989 and 21-8-1991. 27. The Collectors reference to the res judicata in the impugned order was misplaced and fallacious as it was not relevant for the purpose of this case and also pleading rested on the question of binding effect of presidence and judicial discipline. 28. It was also their contention that even otherwise on merits they have a strong case inasmuch as the Collector (Appeals) has erred in holding that the diamond impregnated segments are parts of blades. It was their contention that these segments performed the same function as blades because they have cutting edges that is to say were in nature of segmented blades. In this connection they would like to file extracts from standard book on Engineering titled as `Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that Section and Chapter Notes cannot be applied to the exemption notifications. It was their submission that the Supreme Court s decision in the case of Khandelwal Metal and Engg. was not brought to the notice of the Tribunal in those cases. 32. It was also their contention that Note 2 of Chapter 2 equally applies to two exemption Notifications in question and therefore, expression used in Heading 8202.00 and two exemption Notifications should be given the same meaning and scope and on that basis even parts of blades would be covered under this Notification. 32(i). In response to queries regarding the scope of exemption notifications, the learned counsel further stated that this notification not only covers blades and parts of hand saws but saws of all kinds as there is a semi-colon between the words hand saws and the words blades for saws of all kinds . Both in the HSN and the Central Excise Tariff specific handtools are covered under 82.01 but the Heading 82.02 covers hand saws as well as blades for even power operated saws and saws for machine tools etc. as per HSN. 32(ii). He also further stated that the explanatory notes indicate that saw blades may have integral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases of Collecter of Customs v. O.E.N. India Ltd. reported in 1989 (42) E.L.T. 235 (Tribunal), Guest Keen Williams Ltd. v. Collector of Customs, Calcutta reported in 1987 (29) E.L.T. 68 (Tribunal) and Johnson and Johnson Ltd. v. Collector of Customs, Bombay reported in 1987 (29) E.L.T. 428 (Tribunal) in which the Tribunal had held that the Rules of Interpretation and the Section Notes cannot be applied for interpretating a notification. 39. Learned DR also drew attention to the Explanatory Notes of the BTN and HSN and stated that it has got an exclusion clause which indicates that toothless discs fitted with abrasive rims (e.g., for cutting marble, quartz or glass) or with a series of peripheral inserts of abrasive material are not classifiable under this heading and in this connection, the exclusion clause itself refers to Explanatory Note of Heading 68.04. 40. Learned counsel stated in reply that the above orders were passed by the Tribunal in those cases where the wordings of the notification were different from those used in the Tariff Headings and sub-headings wherein the cases which he has cited show that the chapter notes and section notes are relevant and applicable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used in the notification, although, these notifications have been issued under Rule 8(1) of the Central Excise Rules and not under the Tariff Act. 43. A doubt could, however, still arise as to whether these notifications cover parts of the blades of saws other than hand saws because apart from the word hand saws used in Serial No. l, all other entries in the notification relate to hand tools or parts thereof and therefore, the semi-colon between hand saws and blades for saws of all the kinds notwithstanding it is required to be seen whether the entry would cover only blades of hand tools. Hence , in view of the admitted position that the parts in these cases were intended to be welded, fixed or fitted to machine tools whether the item will be covered by the entry. However, at the same time, we notice that even the HSN and BTN include under the Heading 82.02 not only hand saws but blades for saws of all kinds including those meant for power operated tools and machine tools; and the Explanatory Notes further clarify that saw blades may have integral teeth, or be fitted with inserted teeth or segments (such as some circular saws). The teeth may be of base metal or base meta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately presented base metal parts of hand saws and base metal teeth and toothed segments for insertion in saw blades. Therefore, it would be seen that even if Chapter Note 2 was not applied, the parts of saw blades would also be covered under 82.02 by virtue of Explanatory Notes. Admittedly, the Explanatory Notes do have persuasive value and have gained national (and even international) acceptance and therefore, they cannot be lightly brushed aside and this Tribunal has been normally calling them to aid whenever and wherever necessary. 44. As regards the Notification No. 63/91, undoubtedly, it explains the scope of the exemption to include all goods falling under specified chapters and it is apparently prospective in character but in so far as the present case is concerned, it can be decided on the basis of the Interpretation Notification No. 108/88 and 207/88 relating to the relevant period on its own merits. 45. At the same time, the appellants are correct in pointing out that once the Assistant Collector has passed an order and it is confirmed by the Collector (Appeals) and no appeal is filed against the order of the Collector (Appeals), the order attains finality. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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