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1981 (12) TMI 41

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..... As stated above, the petitioner-company manufactures automobile windscreens, both flat and curved, and sells them as parts and accessories of motor vehicles. There is no dispute that till 28th February, 1979, having regard to the notification issued by the Central Board of Excise and Customs, respondent No. 2 herein (hereinafter referred to as "the Board") windscreens were exempt from excise duty since the duty was paid on the glass from which they were manufactured. In March 1979, Article 34A was inserted in the excise tariff on account of which motor vehicle parts Tractors and Trailors were made subject to excise duty at the rate of 20% ad valorem. The said entry enumerated various motor parts which were made subject to duty at the rate of 20% ad valorem. If the entries stood by itself and if windscreen was considered to be a motor part (which is the principal question to be decided in this petition) the petitioner-company would have been liable to pay duty on windscreen at the rate of 20%. But by a notification issued contemporaneously, Notification No. 76/79-C.E., dated 1st March, 1979, it was provided that those motor parts which were not enumerated in the said entry 34A were .....

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..... fittings. Although this amendment is prior to 7th April, 1979, when the licence was issued by the department to the petitioner considering that windscreens manufactured by them were parts and accessories of motor vehicles, nobody from the department thought that the said amended entry 23A could have any application to the articles namely on the windscreens manufactured by the petitioner-company. But it appears that some brain-wave hit some officers of the department who were able to persuade themselves to take the view that the windscreen was better regarded as "other glass" within the contemplation of the said amended entry 23A than a motor-part within the contemplation of entry 34A. It is unnecessary to set out the various requisitions made by the department upon the petitioner-company in that behalf. It is enough to state that by their letter dated 28th August, 1979, the Superintendent of Central Excise, respondent No. 5, herein called upon the petitioner-company to take a licence under the Act for the purpose of manufacture of windscreen under Item No. 23-A(4), evidently on the ground that according to the respondents windscreen bore the character of "othe .....

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..... try No. 23A(4) which refers to excise duty payable on "other glass and glassware including tableware" ? 5. The contention of the petitioner-company is that in the first instance the department itself had provisionally recognised the fact that windscreens manufactured by them were motor parts and such entry No. 34A of the Central Excise Tariff specifically applied to the said commodity. The contention is that since said entry No. 34A is a specific provision no question would arise of the application of entry No. 23A (4) which was after all general provision relating to glass and glassware. 6. The contention of the department on the other hand is that what is manufactured by the petitioner-company is an article from glass and nothing else. All that the company has done, according to the department, is that raw material of glass which is received by the company is curved and cut into sizes suitable for windscreens. The contention is that windscreen did not cease to be glass merely because by certain process firstly it is flattened or curved and secondly toughened with a view to have a flat or curved windscreens, that the ultimate commodity continued to be glass and that there is n .....

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..... into the question whether such double taxation would he permissible or not, it can be safely said that the legislature never contemplated such a double taxation on the same commodity by way of excise duty while providing for the excise tariff. The fallacy of the departmental reasoning lies in the fact that the raw material from which the final product is manufactured is equated with the final product itself. 9. Mr. Sethna, the learned Advocate appearing for the respondents, conceded before us that windscreen was a motor part. But it may be stated that his concession was a qualified concession. He contended that so far as motor parts were concerned, they were numerous in number. But even though the windscreen was a motor part it continued to be "glass" and hence entry 23A(4) must be held to be the specific provision so far as excise duty payable for windscreen was concerned. To our mind this contention is fallacious. We will presently point out that if at all there arose a question as to between the two entries namely 23A(4) and 34A which is the specific entry vis-a-vis windscreen, we would have had no hesitation in holding that it is entry No. 34A which is the specific entry and .....

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..... rned Counsel appearing for the department fairly stated that if he walked in a glass or glassware shop he could not purchase an automobile windscreen. It is therefore, clear that in commercial parlance windscreen is an entirely different commercial commodity identified independently from glass or glassware. 10. Both the sides heavily relied upon Brussels Nomenclature in support of their contention and hence it is worthwhile making a reference to the same at this stage. In Volume 4 of the explanatory notes to the Brussels Nomenclature parts and accessories of the motor vehicles are commented upon. The main test in this behalf is to be found in para 87.06 at page 1500 (Volume 4), which runs as follows : "This heading covers parts and accessories of the motor vehicles falling within heading 87.01, 87.02 or 87.03, provided that the parts and accessories fulfil both the following condition : (i) They must be identifiable as being suitable for use solely or principally with the above-mentioned vehicles, and (ii) They must not be excluded by the provisions of the Notes to Section XVII (see corresponding General Explanatory Note)." Further in the same para 87.06, it is mentioned .....

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..... uch was not previously governed by entry 23A(4), but glass started being governed by the same only by virtue of the amendment and, according to him, glass as distinguished from glassware was wide enough to include everything made of glass which was not glassware. He contended that windscreens were nothing but glass and they were not glassware and hence they were governed by entry 23A(4). To our mind, answer to this argument is in the form of the same proposition as the one we have already referred to above. We have to take into account general understanding of the commercial community in respect of the particular word used by the excise tariff for denoting or identifying the relevant article. We have already found that windscreen is not considered to be mere glass by the commercial community. Windscreen will not be available with a dealer in glasses. If that is so it is futile to contend that the mere fact that glass was added to the commodities which were subject matter of the article 23A(4) even the windscreen which was previously governed by article 34-A started being governed by entry No. 23A(4). Mr. Sethna's second line of argument was based upon the observations in expla .....

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..... earn exemption from sales tax and this Court held that word 'vegetable' had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did not comprise betel leaves within it and therefore, betel leaves were not exempt from taxation. In Commr. of Sales Tax, Madhya Pradesh v. Jaswant Singh Charansingh, (1967) 2 SCR 720: (AIR 1967 SC 1454) the question was whether the item 'coal' under Entry I of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or not and this Court observed thus : "Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in t .....

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