TMI Blog2018 (7) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... cation but only a smaller article within the same classification provided that there is no change in basic physical property and possible end use. Appeal dismissed - decided against Revenue. - Central Excise Appeal No. 23 of 2017 - - - Dated:- 5-7-2018 - Hon'ble Shri Pankaj Kumar Jaiswal Hon'ble Shri Sunil Kumar Awasthi, JJ. Shri Prasanna Prasad, learned Counsel for the appellant Ms. Reena Khair, learned Counsel for the respondent ORDER Per P.K. Jaiswal, J. This appeal has been filed by the revenue against the final order dated 17.10.2016 passed by the Appellate Tribunal, New Delhi in Excise Appeal No.1091 of 2010-EX(D.B.) by which the learned Commissioner (Appeals) -I, Indore allowed the appeal of the assessee and set aside the order passed by the adjudicating authority on 9.9.2009. 2. The respondent is holder of Central Excise Registration and engaged in manufacturing of A.C. Pressure Pipes falling under Chapter Sub-heading No.6811 30 10 and A.C. Coupling falling under Chapter Sub-heading No.6811 30 90 of the schedule to the Central Excise Tariff Act, 1985. They have been clearing A.C. Pressure Pipes and A.C. Couplings at Nil rate of duty u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been based on the Circular No.891/11/09-Cx. dated 15.6.2009, wherein it has been clarified that the exemption at Serial No.7 of the notification is not available to pipe fittings. The respondent is engaged in the manufacture of asbestos cement pipes falling under heading 681183. The sub heading covering such pipes reads as under:- .....tubes, pipes and tube or pipe fittings . 8. The heading 6811.83 covers both pipes and fittings thereof. There is no separate classification of pipe fitting, as stated in the circular for asbestos cement pipes. The circular would not be applicable to the subject goods and its applicability would be confined to those pipes, in respect of which the fittings are classified in a separate heading. 9. Relevant part of circular dated 15.6.2009 and Serial No.7 are reads as under:- It has brought to the notice of the Board that the manufacturers of pipe fittings (joints, sleeves, elbow, couplings, etc.) are claiming the benefit of SI No.7 of the Notification No.6/06-CE. It is also reported that some units are manufacturing pipes and pipe fittings and claiming benefit of notification for pipe fittings which are cleared alongwith pipes. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of water or for carrying out any similar process or processes intended to make the water fit for human or animal consumption, but does not include a plant supplying water for industrial purposes. 10. In the case of Bharat Forge Press Industries (P.) Limited Versus Collector of Central Excise, reported in 1990 (1) SCC 532, the Hon'ble Supreme Court held that : It is also clear that it is of no consequence whether the pipes and tubes are manufactured by rolling, forging, spinning, casting, drawing, annealing, welding or extruding. It is true that initially pipes and tubes may be obtained from sheets, billets or bars by various processes, but the process of manufacture of pipes and tubes does not end there. In order to achieve fully the purpose for which the pipes and tubes are manufactured, it is necessary to manufacture smaller pieces of pipes and tubes and also to manufacture them in such a shape that they may be able to conduct liquids and gases, passing them through and across angles, turnings, corners and curves or regulating their flow in the manner required. Smaller pieces of pipes and tubes differently shaped are manufactured for this purpose. They are merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... programs. It is evidence from the Speeches of Finance Ministers during the Annual budgets. In 2004 he said The poor want drinking water: we shall ensure that every habitation has an assured source of drinking water. In the 2005 Budget he said, The UPA Government's goals are: ... to provide drinking water to the remaining 74,000 habitations that are uncovered. In the 2008 Budget he said , Our Children should have good, clean drinking water. The government to fulfill the above aim, in public interest issued exemption notification 06/2006-CE. the notification exempts (2) Pipes needed for delivery of water from its source to the plant and from there to the sotrage facility. Clearly the intention of the government is to exempt pipes including joints and couplings. Without joints and couplings the delivery of water from its source to plant and from there to storage facility is not possible and thus denial of exemption to coupling falling under the chapter will defeat the purpose of the Public Interest. Exemption is for the specific purpose of supply of water from its source to storage and the notification exempts the pipes needed for the purpose of delivery of water ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the said judgment revealed that it was delivered in the context of item No.26AA(iv) of the erstwhile Tariff, and in the said judgment, it was also observed that as the entries in the erstwhile Tariff and present Tariff are different, the entries in the present tariff cannot be used to interpret the entries in the old tariff. Therefore, the said judgment is not applicable to the present tariff, where pipes and pipe fittings are classified under different Tariff items. The product pipes and coupling of the appellant are covered under the headings 6811.83 ----tubes, pipes and tube or pipe fitting . The heading 6811.83 covers both pipes and fittings/couplings there is no separate classification of pipe fitting, as stated in the circular for asbestos cement pipes. The circular is not applicable in the case of appellant. Its applicability is limited to those pipes, in respect of which the fitting are classified in a separate heading. In terms of above clarification also the case of appellant is squarely covered by the above decision and thus exemption is available to the couplings. Further the Clarification issued by the board is neither an act nor rule framed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue. 14. The present appeal has been filed by the revenue under Sub-section (2) of Section 35-G of the Act of 1944 on the ground that the interpretation of exemption notification No.6/2006 dated 1.3.2006 and circular dated 15.6.2009 made by the Appellate Tribunal as well as by the Appellate Authority is not correct because the Pipes and Couplings falls under different heads at the relevant point of time. The judgment of the Bharat Forge and Press Industries (P.) Limited (supra) is distinguishable on facts. The product of pipes and couplings of the respondent are covered under heading 68118300 ---- Tubes, pipe and tube or pipe fittings . The heading 68118300 covers both pipes and fittings/couplings. There is no separate classification of pipe fittings, as stated in the circular for asbestos cement pipes. The Appellate Authority as well as the Appellate Tribunal had held that the circular is not applicable in the case of respondent. Its applicability is limited to those pipes, in respect of which the findings are classified in a separate heading. 15. Learned Counsel for the appellant has submitted that the only substantial question of law which is arising in this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit. It fails and is accordingly, dismissed. 17. She has further submitted that this issue has also been dealt with the Apex Court in the case of Naveen Chemical Manufacturing Trading Company Ltd. Versus Collector of Customs reported in 1993 (68) ELT 3 (S.C.) and recent decision of the Apex Court in the case of Steel Authority of India Limited Versus DGAD reported in 2017 (349) ELT 193 (S.C.). To appreciate the contention of learned Counsel for the respondent, we reproduce paras 11 of Naveen Chemical Manufacturing Trading Company Limited (supra) and para 19 of Steel Authority of India Limited (supra), which reads as under:- 11. It will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this sub-section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning a failure of justice. 18. In the case of Steel Authority of India Limited (supra), the Hon'ble Supreme Court has held that a direct appeal lies to the Supreme Court against an order passed by the Appellate Tribunal relating to the question of duty or classification of goods. The question of maintainability of appeal under Section 35-G was also considered by the Punjab and Harayana High Court in the case of Principal Commissioner of Central Excise and Service Tax Versus M/s. Raja Dyeing reported in 2017 TIOL 552 HC-P H-CX, paras 11 and 14 are relevant which reads as under:- 11. The words among other things in Section 35 G are of singular importance in determining the ambit of Section 35 G. These words indicate that an appeal is maintainable under Section 35 G to the High Court only if the order passed in appeal by the Tribunal is not one relating to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment, an appeal against that order would lie only to the Supreme Court under Section 35 L and not to the High Court under Section 35 G. This would be so even if the appeal is only in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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