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TMI Blog1991 (9) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Anand had not accepted the claim of the respondents for their classification under Item 68 but decided that the function of such bolts being that of fastening the machinery of material handling equipment to the foundation, they were rightly classifiable under Item 52. This order was reversed in appeal of the following ground :- "In the instant case the issue for consideration (is) whether foundation bolts (without nuts) are classifiable under Tariff Item 52 or otherwise. It is clearly mentioned in the Bombay Trade Notice 127/71 dated 5-7-1971 that "mere existence of threads would not render an article as a bolt, nut or screw if it is recognisable as component part of an instrument, apparatus or appliance or machine." The tariff defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng couched in identical language as Tariff Item 52 has been made in support of the ground that all types of fastening bolts and metal screws regardless of shape and use are included in this tariff item. It is also mentioned in the appeal that in every second sentence in the impugned order there is a mention that the subject goods are "foundation bolt" which clearly establishes that the product is classifiable under Item 52 of the erstwhile Central Excise Tariff. Reliance has been placed on the decision of the Tribunal in the case of M/s. Ramdas Motor Transport Ltd., Kakinada v. Collector of Central Excise, Guntur -1984 (3) E.T.R. 290. 4. The respondents in their letter dated 4-10-1990 stated that they did not desire to be heard and forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructing the scope and ambit of any tariff entry in the latter. 5. Appearing for the appellant-Collector, Smt. J.M. Shanti Sundaram, the learned SDR referred to the decisions of the Supreme Court in the case of Plasmac Machine Mfg. Co. (Pvt.) Ltd. v. Collector of Central Excise -1991 (51) E.L.T. 161, in which it was held that the fact of captive use of Tie Bar Nuts and not for sale was not tenable because such use was not determinative of the question. She placed reliance on another Supreme Court judgment in the case of Jaishri Engineering Co. (P) Ltd. v. Collector of Central Excise - 1989 (40) E.L.T. 214. She submitted that the product performed the function of fastening and it is for this reason that it was named "foundation bolt" i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st this, the Assistant Collector has recorded a finding after visiting the factory, according to which, the function of foundation bolt is that of fastening the machinery to the foundation. This being so, we do not see how the appellate authority could have reversed a finding of fact recorded by the lower authority without any new facts having been brought on record. Therefore, on this count alone, the impugned order is liable to be set aside. 7. The decisions of the Supreme Court cited by Smt. Shanti Sundaram, fully support her case. To quote from the Plasmac case (supra), the Supreme Court, in para 7, observed as under:- "7. The submission that the He Bar Nuts manufactured by the appellants to specifications of Injection Moulding Machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles dealt with in these decisions are applied to foundation bolts, it would appear that the goods are performing the function of fastening the machinery of material handling equipment to the foundation and they are known by the name of 'foundation bolts'. The fact that they are used captively and not sold is also not material in view of the decision in the Plasmac Machine case (supra). The ratio of the Supreme Court decision in the Calcutta Steel Industries case as well as in Bhor Industries case (supra) that it is for the Department to prove that the goods are excisable and pass the common parlance test had been fully discharged by the authorities. In these circumstances, the respondents herein do not have a case and the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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