TMI Blog1984 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be covered by Tariff Item No. 26AA (ia) the petitioner will be entitled to the exemption granted by Notification No. 75/67, dated 20th May, 1967, issued under Rule 8 of the Central Excise Rules, 1944. The result of this writ application, therefore, is dependent on the decision as to which tariff item covers M.S. rivets. 3. The second column of Item No. 26AA(ia) of the Tariff which is said to be applicable according to the petitioner is in the following terms : "Bars, rods, coils, wires, joists, girders, angles, other than slotted angles, channels other than slotted channels, tees, beams, zeds, trough piling, and all other rolled, forged or extruded shapes and sections, not otherwise specified." The 68th item is the residuary ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. According to the case made-out in the writ application, M.S. rivets are prepared to predetermined shape by a process of hot pressing known as forging out of duty paid iron rods and thus attract Item No. 26AA. By an application filed later in this case, the petitioner further asserted that the question whether M.S. rivets were covered under Tariff (Item) No. 68 or Tariff Item No. 26AA was raised throughout the country and as different States were not consistent in their stand, the matter was referred to the Central Board of Excise and Customs who after consideration issued an advice being Tariff Advice No. 37/82, dated 13th July, 1982, declaring that the disputed item was covered by Tariff Item No. 26AA(ia). 6. The petitioner has also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective demand and has been challenged as ultra vires on this basis also. Lastly, it was suggested that, in any event, the Assistant Collector should have heard the petitioner before issuing Annexure 2 and should have disposed of the petitioner's objection by a speaking order. 10. The learned Standing Counsel, Central Government, raised a preliminary objection that as the petitioner has not availed of the remedy of appeal, the writ application should be dismissed without considering the points urged by the petitioner. In reply, Mr. Mahto argued that the writ application having been admitted in 1979 cannot now be defeated on the ground of alternative remedy being available. He appears to be right. The case was admitted within the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter VIIA of the Rules deals with removal of excisable goods on determination of duty by producers, manufacturers or private warehouse licensees. Rule 173B directs an assessee to file with the proper officer a list for approval in prescribed form and it is provided further that the officer shall, after making necessary enquiry, approve the list with such modification as may be considered necessary and duty payable on the goods in question intended to be removed shall be determined according to the approved list. has been stated earlier, the petitioner's classification list as contained in Annexures 1, 1(a) and 1(b) were duly approved. Sub-rule (5) permits modification in the following terms : "(5) When the dispute about the rate of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the parties, the arguments addressed by the learned Counsel and the technical books referred to at the bar, indicate that the controversy as to the application of the tariff item requires careful consideration and the right of the petitioner to place its case, therefore, cannot be brushed aside as a mere technicality. I, therefore, hold that the impugned annexures are fit to be set aside and in that view it is not essential to decide the question as to which tariff item is applicable in this case. If the authority concerned so desires, it may issue notice to the petitioner and then after giving it adequate opportunity to place its case further orders under Rule 173B (5). 16. For the reasons mentioned above, Annexures 2 and 3 are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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