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TMI Blog1989 (2) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid levy of excise duty as well as appellate orders. 2. I have heard Sri B.N. Bhattacharya, Advocate appearing for the petitioners. His first contention is that the Tribunal has, in the impugned order, refrained from relying upon a decision of this Court rendered in the case of Mother India Refrigeration Industries P. Ltd. v. Superintendent of Central Excise and Others (1980 E.L.T. 600) which is in favour of the assessee and has erroneously agreed with the view taken by the Gujarat High Court in the case of Anil Ice Factory and another v. Union of India 1984 (Vol. 15) E.L.T. 333. The argument proceeds that the cause of action for levy of excise duty in the present case are in Uttar Pradesh. Therefore, under Article 226 sub-clause (2) of the Constitution of India, the Customs, Excise and Gold (Control) Appellate Tribunal was bound by the decision of this Court and it was not open to the said Tribunal to have agreed with the aforesaid view of the Gujarat High Court. To examine this contention, it is necessary to reproduce sub-clause (2) of Article 226 of the Constitution of India. The same reads as follows :- " (2) The power conferred by clause (1) to issue directions, orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the central idea underlying Entry 29-A is that dutiable article must be an assembled unit which is ordinarily sold or offered for sale. If a person erects a unit with his own ingenuity, that is not liable to duty. .It has also been held that Entry 29-A covers only such parts of refrigerating or air-conditioning appliances which are liable to duty, that is to say the part should be such as are ordinarily sold or offered for sale as ready assembled units. Therefore, it has been held by this Court that component parts erected at the site are outside the purview of Item 29-A as they are not assembled units. No other submission was made or authority cited on behalf of the petitioners. 5. Sri Shekhar Srivastava, learned Counsel for the Union of India has, on the other hand, relied upon the said decision of the Gujarat High Court in the case of Anil Ice Factory and another (supra). In this case the Gujarat High Court has expressely disagreed with the aforesaid decision of this Court in the case of Mother India Refrigeration Industries P Ltd. (supra) and has held that sub-clause (3) of Entry 29-A which is in issue in the present case is an independent clause and has got nothing to do with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng appliances and machinery of all sorts i.e. all types of appliances and machinery which are mentioned in items (1) and (2) is mentioned but not assembled because all such appliances and machinery being assembled would fall within either of the two categories. Since legislature intended to levy duty on parts of the aforesaid refrigerating and air-conditioning appliances also, therefore, a necessary inference that has to be drawn is that such parts must take colour and be subjected to the conditions mentioned in items (1) and (2) above. To my mind, in other words only such parts of refrigerating and air conditioning appliances and machinery and dutiable which also satisfy the test of being ordinarily sold or offered for sale. In case such parts are not sold or offered for sale but manufactured and utilised in a cold storage, as has been done in the present case, no duty is payable on the same. Besides, this word "thereof occurring in the main heading is also an indication to this result. 8. In the case of Collector of Central Excise, Bombay and another v. M/s. Parle Exports (P) Ltd. (1989 U.P.T.C. 173), one of the principles laid down by the Hon'ble Supreme Court for interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjects of enumeration constitute a class or category; (c) that class or category is not exhausted by the enumeration; (d) the general term follows the enumeration; and (e) there is no indication of a different legislative intent. In the present case I find that this rule applies on the said basis. Therefore, it has to be concluded that the entry in dispute is not independent as has been held by the Gujarat High Court in the case of Anil Ice Factory and another (supra) but follows the specifications of the various types of appliances and machineries which have been enumerated in sub-clauses (1) and (2). The intention of the legislature appears to be to levy duty on parts of such machineries only and not otherwise. 11. The aforesaid Tariff Entry No. 29-A has also been interpreted by the Bombay High Court in the case of Blue Star Ltd. v. Union of India and another 1980 (Vol. 6) E.L.T. 280. In this case the petitioner-Company carried on business, inter alia, of manufacturing Walk-in-Coolers which are used for preservation of food, medicines and other perishable articles. These Walk-in-Coolers comprised of various component parts such as cooling coils, blower meters, condensing uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain at page 415 and also in the decision of the Central Excise Tribunal in the case of Ravi Dughdhalaya, Ahmeddbad v. Collector of Customs and Central Excise. Bom. 1984 (17) E.L.T. 125 -127) 14. From the above, it is also apparent that at any rate two views are possible for the interpretation of the disputed entry occurring under Item 29-A. It is settled that in such a situation the interpretation in favour of the subject has got to be done by the Court. Hence also in the present case no excise duty is attracted. 15. Further sub-section (3) of Section 3 of the Central Excises and Salt Act, 1944 which came into effect from the 1st of July 1978 and though not enacted and not enforced at the time when the dispute arose, yet it is a pointer to the interpretation to be put for excisable items. The said sub-clause (3) reads as follows :- "(3) Different tariff values may be fixed :- (a) for different classes or descriptions of the same excisable goods; or (b) for excisable goods of the same class or description - (1) produced or manufactured by different classes of producers or manufacturers; or (ii) sold to different classes of buyers; Provided that in fixing different tariff val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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