TMI Blog1983 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ing electrodes, all sorts . The lower authorities held that Item 50 covered these wires and since the appellants were found manufacturing and clearing these wries without taking out a Central Excise licence, and without payment of duty, they were subjected to penalty and confiscation of their goods. Duty on the goods cleared by them was also demanded from the appellants. 3. The appellants plea is that in trade parlance their wires, which are nothing but copper coated steel wires, are not known as electrodes, that their wires could not be called electrodes since no electric current passes through them, that their wires were only a welding media and not electrodes, that the lower authorities had based their findings on the use of their wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vise the Government. 5. The question also came up before us in the resumed hearing on 16-8-1983 as to whether the subject wires would be covered by the residuary Item 68 in case Item 50 was found to be inappropriate for them. Both sides stated that the question of alternative tariff entry had not been gone into by the lower authorities and this question, if at all, could be remanded for consideration by the lower authorities in the first instance. 6. We have carefully considered the matter. We notice that the question of tariff classification of copper coated steel wires came up before the Bombay High Court in the case of M/s. Advani Oerlikon Ltd. v. Union of India [1981 E.L.T. 432 (Bom.)] in that case, the wires involved were meant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s do not help the Department s case. As regards the question of an appropriate alternative tariff entry, whether Item 68 or Item 26AA(ia), we agree with both sides that since the question involves verification of new facts, in fairness to both parties it should be left to the lower authorities to consider it. 7. Accordingly, without prejudice to the Department s right to consider alternative classification for the subject wires, we allow these two appeals on the short point that the subject wires do not fall under Item 50 of the Central Excise Tariff. In the consequences, the duties demanded from the appellants, the penalties imposed on them and the order of confiscation of the goods seized from them are all set aside. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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