TMI Blog1991 (3) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... 17(4). He also instructed the petitioner to obtain a license and apply for re-classification. This direction of the respondent No. 4 was objected to by the petitioner on the ground that his item is not covered under sub-item (4) of Item 17 of the Tariff. After protracted correspondence petitioner agreed to apply for provisional clearance of his item i.e. the outer shell under Rule 9B of the Central Excise Rules under Tariff Item 17(4). Petitioner also applied for license and filed a fresh classification list under Tariff Item 17(4) on 6th March, 1982. Superintendent, Central Excise allowed clearance of these outer shells on provisional basis. But, subsequently vide the impugned order, based on the direction of the Board, respondent No. 4 classified the outer shells as printed boxes under Tariff Item 17(4) and thus deprived the petitioner of its entitlement to exemption granted vide Notification dated 28th February, 1982. Provisional assessment already granted was also thus withdrawn. 3. Aggrieved by this action of the respondent present petition has been filed challenging the impugned order inter alia, on the ground that the Board has no authority under the law to give directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/- (V. Lakshmi Kumaran) Under Secretary Central Board of Excise Customs. This 'clarification' of the Board by way of directive was conveyed to all subordinate authorities with direction to treat and classify the outer shell as box (slide type box). This direction by the Board is in violation of the principal of natural justice and cannot be binding on the Assistant Collector. In order to emphasise that it is on account of the directive issued by the Board that the impugned order has been passed, the counsel drew our attention to the impugned order dated 30th April, 1982 which is reproduced as under: OFFICE OF THE SUPERINTENDENT CENTRAL EXCISE RANGE IV VAPI Date: 30th April, 1982. To, M/s. Zupiter Printery, Vapi. Sir, Sub.: Classification Cigarette Shells. Regarding the classification of the Cigarette Shells, you are hereby informed that this printed shell in the nature of Printed boxes (Slides type of boxes) and are accordingly classifiable under Tariff Item No. 17(4) and hence they would both be eligible for the exemption under notification 66/82, dt. 28.2.1982. Further you are also informed that if the inner slide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the relevance of those directions issued by the Board, Supreme Court observed that powers of Assistant Collector, Collector or for that matter Central Government who hear appeals or revisions are quasi-judicial in nature. That power cannot be controlled by the administrative directions issued by the Board, that is the essence of our judicial system. Therefore, the assessing authority to whom appeal lies, his powers cannot be controlled nor his judgment can be fettered. Such directions leave no room for the exercise of his own mind, nor such a decision can be called an independent judgment. Duty is cast upon quasi-judicial authority to act in a judicial and independent manner. Such judicial authority should not allow its judgment to be influenced, by administrative directions or instructions given by his superior authority. 7. In fact perusal of the Act shows that there is no provision empowering the Board to issue directions to assessing authorities or the appellate authorities in the matters of deciding disputes between the parties i.e., assessed and the department. Therefore such a quasi-judicial authority has to act independently and impartially. They cannot be said to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stage. Hence we heard it on merits. 11. Vide Notification No. 66/82-CE, dated February 28, 1982, the Central Government in exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1984 exempted articles of paper and paper board falling in sub-item (4) of Item 17 of the Tariff from the duty of excise leviable. The said exemption is, however, not applicable to printed boxes and printed cartons. Tariff entry Item No. 17(4) reads as under: 12. Cigarette packet, according to the petitioner, consists of two component parts, one component part is described as outer shell , the other a slide which is inserted in the shell to complete the packet. The said packet becomes complete only when slide is inserted into the outer shell . The outer shell cannot by itself hold or contain the cigarettes. It is only the slide which contains the cigarettes. When inserted in the shell, it becomes a cigarette packet. 13. Mr. Ravinder Narain, Advocate appearing for the petitioner contended that outer shell by itself cannot function either as a box or a container nor fall in the definition of a container or box. Container or box must be capable of holding by itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell can be called an enclosure, which can be used for transportation of the cigarettes. The word container is admittedly preceded by the words boxes, cartons, bags and other packing under sub-item (4) of Item 17 of the Tariff. Supreme Court in the above said case observed that it is a well-accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. It is based on the principle that words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. Considering the expression 'containers' in the context in which it is used, the said expression has to be construed to mean 'packing containers' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles. The shell i.e., the product of the petitioner, is open from both the sides. In the absence of the slide this shell by itself will not be in a position to hold the cigarettes. It is only when the slide is inserted inside the shell that it can be called a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade the shell is not known as a box which is a relevant consideration to be taken as observed by the Supreme Court in the above-mentioned judgment. By box we understand an encasement which ordinarily is used for the convenient transportation of its contents. Chambers English Dictionary defines box as receptacle for holding anything usually four sided . Box is in fact more like a shelter which keeps other articles in itself. Therefore, in the Oxford English Dictionary, Vol. I. box has been defined as a case or receptacle usually having a lid, originally applied to a small receptacle of any material for drug, ointments or valuables . 17. The question for consideration is, whether the outer shell , manufactured by the petitioner, which has no lid and is open from both sides can hold and keep cigarettes. The answer would be in the negative. This is neither an encasement nor a receptacle which can hold the thing in itself. Even if we do not give much importance to the dictionary meaning of the word box still the correct guide in such a case is the context and the trade meaning. The trade meaning is one which is prevalent, in that particular trade. Fiscal Entry must be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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