9911796707
TMI Blog1990 (11) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... blooms, billets, slabs, (i) sheet bars, tin-bars and hoe bars. Three hundred and fifty rupees per metric tonne. Bars, rods, coils, wires, joists, girders, angles other (i-a) than slotted angles, channels other than slotted channels, tees, fiats, beams, zeds, trough, piling and all other rolled, forged or extruded shapes and sections not otherwise specified. Three hundred and fifty rupees per metric tonne. (ii)Plates and sheets (including uncoated plates and sheets intended for tinning, and forms such as ridges, channels, rain water pipes and their fittings made from plates or sheets but not including plates and sheets after tinning), and hoops all sorts other than skelp and strips. One thousand three hundred and fify rupees per metric tonne. (iii) Flats skelp and strips. One thousand three hundred and fifty ruppes per matric tonne. (iv) Pipes and tubes (including blanks thereof) all sorts, whether rolled, forged, spun, cast, drawn, annealed, welded or extruded. One thousand rupees per metric tonne plus the excise duty for the time being leviable on pig iron or steel ingots, as the case may be. (v) All other steel castings, not otherwise specified. Seven hundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent of Central Excise had taken a view that the transmission and lighting poles manufactured by the appellant were classifiable not under Item 26AA but under Item 68 of the Central Excise Tariff and that, therefore, the appellant was liable to pay duty on all goods manufactured by it from 1-3-1975 till the date of the notice. The appellant was asked to furnish a statement of the goods manufactured and sold earlier and also to file a classified list for the above goods in respect of the future. The appellant objected to this, referred to the earlier exemptions granted and contended that the poles were covered by Tariff Item No. 26AA and that it continued to be entitled to the exemption under Notification No. 69 of 1973 dated 1-3-1973 as amended by a Notification No. 16 of 1976. Apparently, this contention was not acceptable to the Revenue. So, the appellant filed Writ Petition No. OJC 1072 of 1977 in the Orissa High Court challenging the latter dated 8-12-1977 and obtained, on 26-12-1977, an order restraining the Revenue from enforcing the letter of 8-12-1977. It received a further letter from the Superintendent on 6-11-1981 to the effect that the assessee-appellant will have to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-10-1982. There was, we are told, another rectification application and an order thereon which is the subject matter of another Special Leave Petition which is not before us today. We shall leave that out of account. 7. These appeals, under Section 35L of the Act, have been preferred against the orders dated 16-4-1985 and 12-5-1986 passed by the Tribunal. 8. We have heard the learned counsel for both parties. We are of the opinion that the appeals have to be allowed on the principal contention on classification raised on behalf of the appellant and that, in this view, it is unnecessary to consider the other point regarding limitation raised on behalf of the appellant. We are of the opinion that the appellant's contention that the goods in question fall under Item 26AA is well founded and that the Revenue was not justified in attempting to levy duty on the basis that the goods fall under Tariff Item No. 68. Before we state our reasons for coming to this conclusion, it would be only appropriate to indicate the approach of the Revenue authorities and the Tribunal. 9. The Assistant Collector of Central Excise pointed out that the poles sold by the assessee were manufactured by it, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tepped poles and swaged poles. It was, therefore, manifest that the poles have a distinct name, character and use, different from pipes and tubes. In trade parlance also, the Tribunal pointed out, the expressions `pipes' and `tubes' were generally understood as something intended for conveying fluids. It could not be said that the products manufactured by the appellant are pipes or tubes. The products conform to ISI specification of "poles". The Tribunal agreed with the Appellate Collector that the poles made of steel tubes and steel pipes are distinct from `pipes and tubes', the expression used in sub-item (iv) of Item 26AA. The duty was, therefore, rightly levied under Tariff Item 68. 11. On behalf of the appellant, it had been submitted before the Tribunal that, on all earlier occasions, the classification lists filed by the appellant were repeatedly approved on the basis that the goods fall under T.I. No. 26AA and that it was not open to the department to reopen these approved classification lists. The Tribunal observed :- "We do not wholly accept this contention. It is well settled that if facts are different, further and fresh facts are brought on record, process of manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercial character of the goods marketed by the assessee as to take them away from the scope of Item 26AA? 13. We think not. The language of Tariff Item No. 26AA is very wide. It covers iron and steel products of the descriptions set out therein. The sum and substance of the descriptions given by the Assistant Collector in the assessment order is only (a) that the poles produced by the appellant are not ordinary pipes and tubes which convey a fluid from one place to another and (b) that they are manufactured by a very elaborate and sophisticated process. So far as the first point is concerned, it will be appreciated that, just as pipes and tubes are generally intended to carry a fluid from one place to another, the poles with which we are concerned enable wires to be passed through them for the transmission of electric energy, a function not very very different in nature from that of other ordinary pipes and tubes. That apart, even tubes and pipes are not always necessarily used for such purpose. They can be used as flag-masts or for purposes of scaffolding or other purposes where they do not serve as a medium for the transmission of a fluid. This is not, therefore, a sound objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that could only have been under Item 26AA (for there was no residuary item then). This is indeed proved by the fact that this very assessee was thus assessed intially and also by the issue of notifications of exemption from time to time which proceed on the footing that these poles were assessable to duty under Item 26AA but were entitled to an exemption if certain conditions were fulfilled. Indeed, the assessee also applied for an obtained relief under one of those exemption notifications since 1964. 15. It is contended on behalf of the department that this earlier view of the department may be wrong and that it is open to the department to contend now that the poles really do not fall under Item 26AA. In any event, it was submitted since the poles were exempted from duty under one notification or other, it was not very material prior to 1-3-1975 to specifically clarify whether the poles would fall under Item 26AA or not. This argument proceeds on a misapprehension. The Revenue is not being precluded from putting forward the present contention on grounds of estoppel. The practice of the department in assessing the poles to duty (except in cases where they were exempt as the condi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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