TMI Blog1979 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ory is situated at Plot No. 20, Wagle Industrial Estate, Thane. The factory is in the category of small scale industry i.e., a unit with capital investment of not more than Rs. 7.5 lakhs and is so registered with the Director of Industries, Government of Maharashtra. The petitioner manufactures "Heat Sealing Tape" and the said tape is excluded from flexible polyvinyl chloride (PVC) i.e., plastic. The tape is mainly used for the purpose of insulation from heat and electricity. In or about the year 1970, there was a dispute between the petitioner and Excise Department as to whether the product manufactured by the petitioner is liable to excise duty under tariff item No. 15-A(2) reads as under :- "Artificial or synthetic resins and pharmaceu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item No. 59 was cotton insulating tape and not plastic tape and as such the petitioner would not be entitled to claim that the product manufactured by him falls under item No. 59. 5. The Central Government issued notification dated 1st March, 1973, being Notification No. 39/73. By this notification it was provided that polyvinyl flat tubings, falling under sub-item (2) of item No. 15-A of the First Schedule to Central Excises and Salt Act, 1944 (1 of 1944) and produced by Extrusion process, by an independent unit in respect of which an Officer not below the rank of an Assistant Collector of Central Excise is satisfied that the capital investment of the plant and machinery installed therein as on the date of initial installation of such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to duty under tariff item No. 59. The petitioner protested against the claim made by the Superintendent and by correspondence pointed out that the action initiated by the Superintendent is totally irregular in view of the order passed by the Assistant Collector of Central Excise. The protest of the petitioner was turned down and by an order dated 16th July, 1974, annexed as Exhibit 'L' to the petition, the Superintendent, Central Excise, directed the petitioner not to manufacture or clear the P.V.C. Heat Sealing Tapes without a valid licence under tariff item No. 59. The petitioner has filed the present proceedings under Articles 226 of the Constitution to challenge the validity and legality of the action of the Superintendent, Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sealing Tapes are primarily used for the purpose of insulation from heat and electricity and therefore the product should be termed as Electric Insulation Tapes. Mr. Shah submitted that item No. 15-A(2) is a general item and if a specific item is provided subsequently on May 18, 1971, whatever may be the earlier decision, the petitioner would be liable to pay duty under that item namely item No. 59. It is not possible to accept the submission of the learned Counsel. The submission clearly overlooks that after the introduction of item No. 59, on May 28, 1971 the petitioner claimed that his products would be liable for duty under item No. 59 but the Superintendent declined to accept that contention by a letter dated July 22, 1971, annexed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court reported in AIR 1977, p. 597, in Dunlop India Limited and Ors. v. Union of India Ors and submitted that merely because two views are possible I should not disturb the orders passed by the authorities below while exercising jurisdiction under Article 226 of the Constitution. I am not reversing the decision of the authorities below merely because I feel that the product of the petitioner falls under one or other item, but I am reversing the orders as in my judgment the authorities themselves were not sure as to under which item the article is liable to duty and in fact the superior officer, Superintendent, Central Excise, had decided that the product is liable to duty under item No. 15-A(2). In my judgment, the decision relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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