2008 (7) TMI 361 - HC - Central Excise

Classification of Tubes and Pip fittings Maintainability of Writ before HC instead of appeal before Apex Court HC held that since revenue accepts that judicial review may be possible against the order of tribunal, writ petition can not be rejected Department issued SCN to change the classification therefore contention of the assessee can not be appreciated against change in classification M.S. bends, special pipes like Reducer Pipes, Adopted Pipes, Cap pieces, socket and pipes, spigot pipes are classifiable under heading 73.03 and not 73.05 assessee is not entitled to concessional rate of duty and liable to pay differential amount.

Issues Involved:
1. Maintainability of the writ petition.
2. Classification of the goods under the Central Excise Tariff Act.
3. Estoppel regarding the classification of goods.
4. Applicability of exemption notifications.
5. Interpretation of tariff headings and sub-headings.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The Revenue argued that the writ petitioner should have approached the Supreme Court under Section 35L(b) of the Central Excise Act, 1944, rather than seeking judicial review via a writ petition. The respondent/company relied on the Constitutional Bench judgment in L. Chandrakumar v. Union of India, which allows aggrieved parties to move the High Court under Articles 226/227 of the Constitution. The court rejected the maintainability ground raised by the Revenue, noting that judicial review is permissible against the order of the CEGAT and considering the lapse of many years since the initiation of the writ proceedings.

2. Classification of the Goods:
The core issue was whether the goods in question should be classified under sub-heading 7305.90 (as tubes and pipes) or sub-heading 7307.00 (as tube or pipe fittings) of the Central Excise Tariff Act, 1985. The Tribunal had classified the disputed goods as 'pipe fittings' under sub-heading 7307.00. The learned single Judge, however, classified them under sub-heading 7305.90, relying on the process of welding involved.

3. Estoppel Regarding the Classification of Goods:
The writ petitioner/company argued that the Revenue could not change the previously accepted classification of the goods. The court held that there is no estoppel in the classification of goods, and the Department can re-classify goods provided the affected party is given a reasonable opportunity to be heard. The show-cause notices were issued, and the writ petitioner/company was heard before the impugned orders were passed, making the re-classification legally valid.

4. Applicability of Exemption Notifications:
The writ petitioner/company had availed a concessional rate of duty under Notification No. 175/88, as amended, by classifying the goods under sub-heading 7305.90. The Revenue contended that the goods should be classified under sub-heading 7307.00, which is not covered by the exemption notification. The court's analysis focused on whether the goods in question fall within the specific descriptions provided under the respective tariff headings.

5. Interpretation of Tariff Headings and Sub-headings:
The court examined the definitions and descriptions under headings 73.05 and 73.07. The learned single Judge relied on the Supreme Court judgment in Bharat Forge and Press Industries Pvt. Ltd. v. CCE, which dealt with the erstwhile Tariff item 26AA(iv) and treated 'pipe fittings' as 'pipes and tubes.' However, the court noted that the current tariff makes a clear distinction between 'tubes and pipes' and 'pipe fittings,' unlike the erstwhile tariff item. The court emphasized that in tax matters, sub-headings should be construed strictly, and the heading providing a more specific description should be preferred.

The court referred to the Harmonised System of Nomenclature (HSN) explanatory notes, which include fittings obtained by welding under heading 73.07. The goods in question, used for connecting pipes to make water-tight joints, were classified as pipe fittings under sub-heading 73.07. The court concluded that the learned single Judge erred in relying on irrelevant materials and misapplying the standards for assessing such materials.

Conclusion:
The writ appeal filed by the Revenue was allowed, and the order of the learned single Judge was set aside. The goods were classified under sub-heading 7307.00 of the Central Excise Tariff Act, 1985, making the company liable to pay the differential duty as claimed by the Revenue.

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