TMI Blog2010 (7) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... reopening the case is also not justified in the facts and circumstances of the present case and therefore both the notices dated March 17, 2008 as well as the authorisation dated March 28, 2008, i.e., annexures 2, 4 and 5, are set aside by this court. - 1088 of 2008 - - - Dated:- 22-7-2010 - RAJES KUMAR AND BHARATI SAPRU , JJ. Heard learned senior counsel for the petitioner Sri Kunwar Saxena and the learned standing counsel for the respondents. Pleadings have been exchanged and therefore the matter is being disposed of finally at the stage of admission itself. By means of this petition, the petitioner has sought the following relief: (i) to issue a writ, order or direction in the nature of certiorari quashing the authorizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed sale of elastic rail clips in the State of U.P. at Rs. 1,91,141 and inter-State sale at Rs. 98,18,670. The case of the petitioner is that elastic rail clips manufactured by it are made of iron and steel and are used as fastening/fitting device for purpose of conjoining the rails in position on P.S.C. sleepers. According to the petitioner, the clips are manufactured by the process of forging iron and steel and therefore are covered under declared goods falling under section 14(iv) and (viii) in the category of discs, rings, forgings and steel casting . These forged goods were liable to tax at the rate of four per cent for the purpose of assessment under the Act and also under the Central Act against form C and D as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apex court approved the decision of CEGAT, Special Bench, in the case of Sikka Heat Treatment Centre v. Collector, Central Excise, New Delhi reported in [1996] 81 ELT 628 (Tribunal) wherein the elastic rail clips have been classified as forgings and therefore liable to be taxed at the rate of four per cent. In response of the reply, the Additional Commissioner (Commercial Tax) authorised the assessing authority to reopen the petitioner's case for reassessment under section 21(2) of the Act by an order dated March 28, 2008. By this order of authorisation, the petitioner is mainly aggrieved and is seeking the relief of certiorari for setting aside the aforesaid order. The petitioner has also prayed for quashing of notices under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rol Appellate Tribunal (CEGAT) has considered the same question and taken the view in favour of the assessee that elastic rail clips are classifiable under item 26AA(ia)/25(8) of the erstwhile Central Excise Tariff and not under item 68. . . 2.. Apart from the fact that the Department itself has accepted the Tribunal's view taken in Sikka Heat Treatment Centre [1996] 81 ELT 628, we also find that this is the more appropriate view to take in the facts of the case. These appeals have, therefore, to be allowed. The contention of the learned counsel for the petitioner is that clearly the Supreme Court in the case of Vee Kay Industries [1997] 94 ELT 5 had accepted that elastic clips were forging and had endorsed the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of the Madras High Court in the case of Opera Arts Industries [2005] 142 STC 113 wherein it has been held that the elastic rail clips did not come in the category of forging and therefore cannot be declared goods under section 14 of the Central Sales Tax Act. This stand has been adopted by the learned standing counsel in para 5 of the counter-affidavit also. There is no reply by the learned standing counsel to the contentions made by the learned counsel for the petitioner that the Supreme Court had in fact in the case of Vee Kay Industries [1997] 94 ELT 5 approved the decision of the CEGAT in the case of Sikka Heat [1996] 81 ELT 628 and also of its own opinion that the elastic rail clips are nothing but forging. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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