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TMI Blog1997 (9) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... lants permission under Rule 173G(1) [Proviso (ii)] to make a single debit entry by order dated 7-7-1995. However, by SCN dated 22-1-1997 they were asked to show cause as to why the earlier permission should not be withdrawn. After considering the reply to the show cause notice and the arguments submitted before him during the personal hearing held on 24-2-1997 the Commissioner passed the impugned order withdrawing the earlier permission on the ground that "the same is not in Revenue's interest." 5. Appearing for the appellants Shri A.K. Jain, ld. Counsel strongly contended that the order withdrawing the permission was illegal apart from being beyond the jurisdiction of the Commissioner. He referred to a number of decisions of the Apex Court in support of his submissions. 6. Shri Jangir Singh, ld. JDR submitted that the Commissioner was very much within his power to withdraw the permission which was granted to the appellants earlier and there was no question of the said order being illegal or beyond jurisdiction of the Commissioner. JDR contended that Clause (ii) of proviso to Rule 173G(1) gave the proper officer a discretionary power to allow an assessee to make a conso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions were given. He referred to Rule 196(1) where no circumstances for withdrawal of permission has to be satisfied. Unlike Rule 196(1), Rule 173G(1) [Proviso (ii)] prescribed the circumstances under which permission is to be granted and as long as the said conditions obtained, no question of exercising the discretion to withdraw the permission already granted can arise. He relied on the Apex Court decision in L.I.C. of India v. Escorts Ltd. - 1993 (67) E.L.T. 618 (Tribunal) = AIR 1986 SC 1370 (Para 63) in support. He has also contended that the order of the Commissioner dated 28-2-1997 was a non-speaking one and could be set aside on that ground alone. 10. We have given due consideration ld. Counsel's arguments. The relevant portion of Rule 173G is extracted below : "173(G). Procedure to be followed by the assessee. - (1) Every assessee shall keep an account-current with the Commissioner separately for each excisable goods falling under different [Chapters of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986)], in such form and manner as the Commissioner may require, of the duties payable on the excisable goods and in particular such account (and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r required by the Commissioner of the duties payable on excisable goods. An assessee has to maintain an Account-Current in triplicate and has to periodically make credit in such account-current by cash payment into the Treasury so as to keep the balance in such Account-Current sufficient to cover the duty due on the goods intended to be removed at any time and every such assessee has to pay the duty determined by him for each consignment by debit to such Account-Current before removal of the goods. To this requirement a Proviso has been added by which in certain circumstances a departure from the procedure prescribed to the main provision of Rule 173G(1) is permitted. The first clause of the proviso allows a certain leeway to the assessee inasmuch as when the duty on the goods consumed within the factory in a continuous process may be paid at the end of the factory day except in the case of cellulosic spun yarn and cotton yarn in which case the provision of Rule 49A would apply. In Clause (ii) of the proviso the proper officer has been empowered to allow an assessee to make a consolidated debit in the account-current at the end of the day towards payment of duty if the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strued so unless there is something in the subject or context rending the exercise of such discretion imperative. The test for deciding whether the discretion is an unfettered one or is an imperative command has been laid down in various authoritative judgments of the Higher Courts. The Bombay High Court in K.H. Sajauddin v. Ratikant Nilkant - AIR 1959 Bombay 401 observed : "Usually, the word `may' is an enabling word ....... giving discretion to the person who is given the option to act in a particular manner mentioned in the section. But it is well recognised that the word `may' in context can mean `shall'. If the statutes authorise any specified persons to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge a duty by the statutes themselves; and in such a case, though the word used by the Legislature may be `may', the intention is to impose an obligation upon the authority to discharge his duty, with the result that the word `may' in the context means `must' or `shall'". 14. Though it is true that the expression used in Clause (ii) of proviso to Rule 173G(1) is "may", it will be observed that the discretionary power conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. 1997 (96) E.L.T. 184 (Tribunal) IN THE CEGAT, COURT NO. II, NEW DELHI Ms. Jyoti Balasundaram, Member (J) and Shri Shiben K. Dhar, Member (T) SHAKUN PRODUCTS Versus COLLECTOR OF CENTRAL EXCISE, KANPUR Final Order Nos. E/1300-1301/97-B1, dated 5-9-1997 in Appeal Nos. E/2126/89-B1 and E/2856/89-B1 Wiring harness, cable harness and handle bar harness - Wires/cables cut to length according to specifications and fitted with connectors and used in automobiles are classifiable under sub-heading 8544.00 of Central Excise Tariff - HSN Explanatory Notes under Chapter 85 and Note 2(a) to Section XVI ibid - Trade Notice No. 255/88, dated 13-12-1988 of Vadodara Collectorate relied on. [para 4] Manufacture - Fitting wires and cables with connectors and putting in a casing to produce wire/cable harness amounts to manufacture - Section 2(f) of the Central Excise Act, 1944. [para 7] Manufacture - Change in Tariff Heading is not a sine qua non for manufacture - Emergence of a new, distinct commercial commodity with different name, character and use amounts to manufacture notwithstanding the fact that manufactured products fall for classification under the same Tariff Head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 52 - Distinguished [Para 5] Union of India v. JMA Industries - 1995 (77) E.L.T. 278 (S.C.) - Distinguished [Para 5] Union of India v. Godrej and Boyce Manufacturing Co. - 1989 (43) E.L.T. 225 (Bom.) - Distinguished [Para 8] REPRESENTED BY : Shri B.B. Gujral, Advocate, for the Appellant. Shri S. Nunthuk, JDR, for the Respondent. [Order per : Jyoti Balasundaram, Member (J)]. - The brief facts of the above appeals which arise out of the order passed by the Collector of Central Excise (Appeals), New Delhi are that the assessees who are manufacturers of "Main Cable Harness", "Handle Bar Harness", "H.T. Cable Assembly" etc., specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fibres, whether or not assembled with electric conductors or fitted with connectors." 30% adv Heading 8714.00 Parts and accessories of vehicles of Heading Nos. 87.11 to 87.13" 4. The assessees received PVC wires/insulated wires and insulated electric conductors classified under 8544.00 of the Schedule to the Central Excise Tariff Act, 1985 in their factory on payment of duty, these wires were cut to different sizes according to specifications and then fitted with connectors such as terminal lugs. The other inputs used by them in the manufacture of cable harness and handle bar harness and wire harness are PVC sleeves, cowl bush assembly, HT cable and fork. The credit of duty paid on the inputs is availed under Rule 57A of Central Excise Rules at the time of clearance of the final excisable products. The appellants' contention is that the goods in question are manufactured as per drawings and specifications of M/s. L.M.L. Ltd. and they cannot be used for any other purpose except for scooters and that too, for scooter models Alpha, T-5 and NV because of their specific lengths and connectors which are required for these models only. However, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomobiles are classifiable under Heading 85.44 of the CETA, 1985 and that it is a new product which is different from wires and cables. The Trade Notice states that in view of Note 2(f) to Section XVII of the Central Excise Tariff, parts and accessories in Section XVII will not apply to machinery and equipment of Chapter 85 and wire harnesses are also used in machines other than motor vehicles, e.g. they are used in air-conditioners, generators, photocopiers, VCRs and compressors. In view of the above, we agree with Revenue that the classification of the disputed items has been correctly arrived at under sub-heading 8544.00. 5. The case law cited by the learned Counsel for the appellants viz. : 1. 1986 (24) E.L.T. 226 (Kar.) - Ideal Jawa India P. Ltd. v. Assistant Collector of Customs, Mysore; 2. 1986 (25) E.L.T. 473 (S.C.) - Atul Glass Industries v. Collector of Central Excise; 3. 1987 (31) E.L.T. 369 (Bom.) - PMP Auto Industries v. Union of India; 4. 1988 (35) E.L.T. 3 (S.C.) - Asian Paints v. CCE; 5. 1988 (36) E.L.T. 283 (Bom.) - Sealol Hindustan Ltd. v. UOI; 6. 1988 (19) ECR 52 - Precision Fasteners Ltd. v. CCE, Bombay; 7. 1995 (7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the use is also different. The submission of the learned Counsel that no manufacture is involved since both wires and cables and cable harness/wire harness fall under the same sub-heading also cannot be accepted since change in Tariff Heading is not a sine qua non for manufacture. In other words, it is not necessary that a manufactured product should fall under a Heading different from its raw materials, and if the test of manufacture laid down by the Supreme Court viz. emergence of a new, distinct commercial commodity with different name, character and use is satisfied, then it has to be held that manufacture has taken place notwithstanding the fact that the manufactured product/products fall for classification under the same Heading or sub-heading as the input material. 8. The challenge to the differential duty demand for a period of six months prior to the issue of show cause notice which has been confirmed in the impugned order is also not maintainable. The classification list filed w.e.f. 1-3-1987 was approved provisionally and came to be finalised with the issue of the adjudication order assessing the goods under sub-heading 8544.00, after the issue of show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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