TMI Blog1963 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961-62. Under Clause 11 of the But the Indian Tariff Act, 1934 was to be amended in the manner specified in the II schedule. In Part II of the Schedule II of the Bill it was stated that in the 1st schedule to the Tariff Act after item No. 59 (6) the following item is to be inserted, namely, '59 (7) China and Porcelain ware, All sorts - (1) Table ware. Revenue. The excise duty for (2) Sanitary ware. the time being levi- (3) Glazed tiles. able on like articles (4) Not otherwise specified if produced or manufactured in India. and where such duty is leviable at different rates, the highest duty; and tba duty so leviable shall be in addition to the duty which would have been levied if this entry had not been inserted. 4. Similarly, by Clause (13) of the Bill certain amendments were made to the 1st schedule to the Central Excises and Salt Act, 1944. By Clause 13 (k) after item 23 new items 23A and 23B were directed to be inserted. We are concerned only with new item 23-B, namely, 'Chinaware and Porcelainware) All sorts,-- (1) Tableware. Fifteen per cent ad valoram. (2) Banitarywara. Fifteen percent ad valorem. (3) Glazed tiles. Ten per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct effected certain amendments to the 1st schedule to the Central Excises and Salt Act. 1944. Section 13 (k) introduced two new items as items 23A and 23B after item No. 23. Item 23B with which we are concerned is as follows : 23 B. Chinaware and Porcelain ware, all sorts,-- (1) Tableware. Fifteen per cent, ad valorem. (2) Sanitary ware., Fifteen pec cent, ad valorem. (3) Glazed tiles. Ten per cent. ad valorem. (4) Not otherwise specified. Ten per cent. ad valorem. Explanation . -- 'Chinaware' includes all glazed clayware but does not include ttrracotta. 8. it will be noted that both item 59 (7) of the 1st schedule to the Tariff Act as well as item 23B in the 1st schedule of the Central Excises and Salt Act referred to above contain an explanation that Chinaware includes all glazed clayware but does not include terracotta. It will be noted that the said explanation was not in the corresponding entries in the original Finance Bill. It may also be noted that the amendments carried out to the Indian Tariff Act by Section 11 and to the ls.t schedule of the Central Excises and Salt Act, by Section 13 of the Act are not retrospective beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of account of the petitioner on 10-5-1961. A copy of the said endorsement is produced before me as Ext. P-3 and it is as follows : This Pottery has been brought under full excise control as on 1-3-1961 as per Tariff item 23B of Finance Bill 1961 vide Government of India Ministry of Finance (Department of Revenue) letter F. No. 15/23/61 Ext. I dated 21-4-1961 communicated in Collector's C. I. C. E. Gen. Circular No. 29/61 dated 25-4-61 and Collector's C. No. IV/16/39/61 CX Pol. dated 3-3-1961. Sd. Range Officer, Irinjalakuda. 10-5-61 . 14. it is after all these correspondence that on 23-5-61 the third respondent issues notice of demand, Ext. P 1, for payment of duty to the petitioners under Rule 9 (2) of the Central Excises Rules, 1944. It wilt be noted that by this time the Finance Act 14 of 1961, had become law with effect from 29th April 1961. It is stated in Ext. P-l that the petitioner is liable to pay excise duty within the period mentioned therein in the sum ot ₹ 3669.94. It is also stated that excise duty at 10 per cent ad valorem under Tariff item 23 B (4) of Finance Bill 1961 on China and Porcelain ware of all sorts, stoneware jars, removed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions the declaration in the Bill 10 of 1961 has the force of law with effect from 28-2-1961 and the declared are provisions in the bill, in particular Clauses 11 and 13, ceased to have the force of law on 20 (30?)-4-1961 when it came into operation as an enactment and in this case, in my view, with an amendment. 17. Section 5 relates to refunds to be made when declarations cease to have effect. 18. Section 2 (d) of the Central Excises and Salt Act, 1944, defines excisable goods as goods specified in the 1st schedule as being subject to a duty of excise and as including salt. Section 3 (1) of the Act which is the charging section directs the levy and collection of duty of excise on all excisable goods in accordance with the sub-section. Having regard to the provisions of the Finance Bill, 10 of 1961, read with the provisions of the Provisional Collection of Taxes Act, 1931, the provisions of the Finance Act, 14 of 1961, and the relevant provisions of the Central Excises and Salt Act, 1944, if under the relevant items the articles of the petitioners are liable for excise duty, then the petitioner can have no answer to the demand made under Ext. P 1. Even on the basis th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner company belong to the category of goods which are commercially known in the market as Chinaware. It is also stated that the materials used for manufacture of the petitioner's articles are local clay, kadappa clay, china clay, feldspar, Quarts, Whiting, Zinc Oxide, Barium Carbonate White lead, iron Oxide, Manganese dioxide and common salt. The respondent also states that by the explanation added to Entry 23-B by the Finance Act, 1961, the scope of the item Chinaware as mentioned in the bill itself was not by any means enlarged but it was only intended to clarify existing position, namely, that all glazed articles commonly known or sold as chinawaue or porcelainware, even if claimed to be clayware, comes under tariff item. The second respondent also takes up the position that whatever may be the technical word used in ceramic science to describe the articles manufactured by the petitioner, they are commonly known-in the market as chinaware and it is in that sense that the expression chinaware is used in Entry 23-B both in the Bill and the Act. 22. Therefore, it will be noted that, while according to the petitioner, the expressions 'china-ware and por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inaware read with the explanation, in item 23-B as it now stands will take in all glazed clayware. There is no controversy in this case that the petitioner's articles are glazed and they are also clayware. As to out of what clay it is manufactured is immaterial for the purpose of the explanation. 26. in my view, if the demand, Ext. P-1, has to be considered after the passing of the Finance Act wherein the explanation to item 23-B has been incorporated it must be held that the petitioner's articles being glazed clay-ware are taken in by the expression chinaware under item 23-B of the First schedule to the Central Excises and Salt Act, 1944 and as such they will be liable to duty. 27. Therefore, all glazed clayware after 29th April 1961, when the Finance Act 14 of 1961, was passed, will have to be considered to be china-ware in item 23-B read with the expression and they will be liable for excise duty in accordance with the tariff. 28. But, as I mentioned earlier, in this case the demand is in respect of a period before the Act came into force. That is, the period for which the demand is made is from 1-3-1961 to 30-4-1961. The Revenue can succeed only if it is abl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles included within this group are common bricks, roofing tiles and unglazed red clay pottery. 32. Again, at page 130, the learned author dealing with glazes says that glazes are carefully prepared mixtures of minerals and chemicals, which when applied on claywares and heated to suitable temperatures, melt into liquid and uniformly cover the surface of the wares and on cooling, that liquid sets into a glass with a glossy surface, which is technically known as the glaze of the ware. 33. in his book A treatise on ceramic Industries by E. Bourry, at page 1 it is stated that bricks, tiles, pipes, terracotta, earthenware, stoneware, china and porcelain are included under the general name of pottery or ceramic ware. It has only to be noted that according to the author stoneware and earthenware are something different from China and porcelain. At page 7, the author states that the expression 'terracotta' comprises all permeable ceramic wares which are not covered with glaze and whose body cannot be heated to a temperature higher than that used in firing hard porcelain (1375oC) without losing its form or becoming vitrified. On the same page, the author says that stonew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive vitrification of material. He also later on says that chinaware or Bone Porcelain is the principal porcelain manufacture in Great Britain and its essential ingredients are china clay, Cornish stone and bone ash. In particular the author says that chinaware varies greatly in composition, but a typical one consists of Bone Ash. 35 Ibs. China clay. 28 Ibs, Cornish stone. 37 Ibs. 34. in this treatise Stoneware and Porcelain by Daniel Rhodes, there is an elaborate discussion about chinaware and porcelainware. In Shorter Oxford English Dictionary, Vol. I at page 302, the expressions China Porcelain , Chinaware and China are dealt with as follows : 'A fine, semi-transparent earthernware, brought from China into Europe in the 16th Century by the Portuguse, who named it Porcelain (China-ware meant orig. ware from China .) This shortened to China, became the name also of the material, so that 'china-ware is now ware made of china or porcelain . 35. This clearly shows that chinaware is a fine semi-transparent earthernware and unless it satisfies this requirement an article cannot be called a chinaware. I have already referred to the passages from the books to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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