9911796707
TMI Blog1982 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. It has also been claimed that the petitioner has been duly registered as small-scale manufacturing unit and the licence for manufacturing of office machines and apparatus, which include electronic calculator and intercom devices, under the Central Excises Act and Rules (hereinafter referred to as the said Act and the said Rules) in or about 1974 and since then they are continuing with or carrying on the manufacture of the products as indicated hereinbefore, on due payment of excise duty, under or according to the relevant tariff. It was the case of the petitioner that they advertised the product "Fonokom" and displayed such item for the use as mentioned above and have sold the same to various customers including the Government and other statutory bodies. 3. "Telephony" means the transmission of speech in a distance by means of the electric current. The process involves the use of a transmitter into which the message is spoken, a battery, conductors to connect the two stations and a receiver in which, the message is heard. "Telephone" according to Chamber's Dictionary, is an instrument for reproducing sound at a distance, by means of electricity and according to Webster's, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise, respondent No. 4, as made in the respondents' affidavit-in-opposition dated 14th Jan., 1981 no reliance can or should be placed on those statements. It has also been claimed by the petitioner that the Indian Telephone Industries, Bangalore, do not pay any excise duty on the similar type of telephone they manufacture for inter-communications, which again, as in this case, cannot be connected with the public exchange and the products of the said Industry as mentioned above are sold to the public and the said Industry, having more than the required number of employees or at least more than the petitioner, pays 1 per cent excise duty under the said Act and in terms of Tariff Item No. 68. 4. In this case, on or about 15th May, 1976, the officers of the Central Excise department visited the office of the petitioner and conducted a search, which has been claimed to be illegal and unauthorised. It has been stated that such search was conducted even in spite of the due protest. Such search was, of course, conducted on disclosure of a search authorisation order and ultimately, on such search, twenty-two pieces of "Fonokom" and eight pieces of Bush branch calculating ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice and bell. In addition, depending on the type of telephone, there may be a signalling device for local battery working or a dial selector for automatic working. (1) The transmitter is a microphone, which under the impact of sound waves causes variations in current. (2) The receiver reconverts the modulated current into sound-waves. It usually consists of a diaphragm placed in the field of an electromagnet. Receivers are usually incorporated in a case specially designed for fitting to the ear, frequently the transmitter and the receiver are incorporated in a single moulding known as a band-set. In some systems the receiver may be a loudspeaker; such systems are used particularly for intercommunication between offices, etc. and permit conversation to be carried on at a distance with an ordinary speaking voice. (3) The bell or buzzer gives warning of a call. These may be built-in with the telephone or be mounted separately. (4) The switching device puts the bell out of circuit when the transmitter and receiver are connected to the line and vice versa. The switch is usually operated by a hook on which the ear-piece is hung, by a cradle for the hand-set or, in the loudspeake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed condition. Explanation :- The term `office machines and apparatus' shall be construed so as to include all machines and apparatus used in offices, shops, factories, workshops, educational institutions, railway stations, hotels and restaurants for doing office work, for data processing and for transmission and reception of messages." 8. It has been claimed by the petitioner that the Joint Managing Director of the same, on 15th May, 1976 made a representation to the Superintendent, Central Excise, respondent No. 3, disclosing all the relevant facts as mentioned above and demanded release of the "Fonokoms" and such representation having failed, further representation was made on 19th May, 1976, to the Assistant Collector of Central Excise, respondent No. 4. It was specifically disclosed in those representations, that the search and seizure was unwarranted, unauthorised and bad in law. The petitioner has also stated that because of the seizure of "Fonokoms" they have suffered much and is also suffering, as during the continuance of the seizure, the petitioner would not be permitted to effect supplies to other customers from whom orders were already accepted. Thereafter, on 26th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spection of the search authorisation and in fact on 3rd August, 1976, after obtaining such copy, the petitioner submitted the necessary reply to the concerned show cause notice. The petitioner has alleged that on 5th August, 1976, a representation was sent for early disposal of the matter, but no expeditious steps were taken. In fact, the petitioner has stated that for such disposal of matter, they have suffered and the petitioner, in spite of the bona fide intention to have the goods as seized released, could not succeed because of the attitude and steps taken by the authorities concerned. 10. The petitioner has stated that after repeated representations the authorities could be persuaded to hear the matter on 27th August, 1976, and on the next date, but thereafter, the respondents, for reasons best known to them, did not pass any order, whereupon on 3rd November, 1976, the petitioner had to give a reminder to the Deputy Collector of Central Excise concerned. Such act or action in not passing the necessary order, was also claimed by the petitioner to be harassing and mala fide too. 11. In their affidavit-in-opposition dated 14th January, 1981, the answering respondents, throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n selection switches, which the telephones have. In view of the admitted characteristics and distinguishing features, the deponent has claimed that "Fonokom" is not a telephone, falling under Tariff Item No. 33D and as such, the same cannot claim exception. It has also been stated that the petitioner has not paid excise duty on such product "Fonokom". 12. The validity, bona fide and correctness of the correspondence with the authorities other than the petitioner by the Indian Telephone Industries, have been denied and it has further been stated that if the Indian Telephone Industries Ltd. are not paying excise duty for their intercom-devices as alleged, treating such products as exempted items, they are doing so illegally, irregularly and on wrong interpretation of Tariff Item No. 33D and such non-payment, would not absolve the petitioners from paying the appropriate duty on their product "Fonokom" which is an intercom device. 13. The deponent has denied the search and seizure as conducted to be illegal, unwarranted, irregular and unauthorised as alleged and the deponent has also claimed, such search and seizure to be due, bona fide, legal and authorised. The "Fonokom" machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en felts, manufactured from woollen fibres by machine pressing of raw wool-waste, which were neither sheets nor fabrics and utilised for the purpose of filtration in heavy industries are not "woollen fabrics" within the meaning of entry 21 in the First Schedule to the Act, read as a whole. The word "fabrics" in entry 21 has been used to mean woven material in which sense it is popularly understood, and blankets, rugs and shawls, etc. have been specifically included in the entry out of abundant caution to indicate that "woollen fabrics" in entry 21 means not only woollen garments but also woollen materials used as covering or for similar other purposes and the well-known rule in interpreting items in statutes like the Central Excises and Salt Act, 1944, is that "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 them, that is to say, to their commercial sense." Mr. Basu, secondly, referred to the determinations in the case of Cannanora Spinning and Weaving Mills Ltd. v. Collector of Customs - AIR 1970 SC 1950 = 1978 E.L.T. (J 375) (S.C.) for the proposition that no technic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
