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TMI Blog1985 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... of a flint." 2. For completeness it may be added that the description of the above item was amended through the Finance Act, 1982, to read as follows : 39. Lighters, Not Elsewhere Specified - Lighters means any mechanical, chemical, electrical or electronic (containing piezo-electric materials) contrivance for causing ignition, which is portable and which operates by producing a spark or flame whether by itself or when brought into contact with gas, and includes a lighter issued from a factory in an incomplete state or requiring for its completion the addition of a flint." 3. The facts in brief are that the appellants started manufacturing gas lighters under the brand name Electrolite (referred to for convenience as the said goods ) in 1978. On 5-6-1978, before they had started manufacture they wrote a letter to the concerned Assistant Collector, in which they explained the features of their product. They stressed that it was an electronic gas lighter and expressed the belief that it would not attract excise duty under T.I. 39. They admitted that it might fall within the scope of the residuary item T.I. 68. They, however, submitted that their capital investment on mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under a Panchnama. Separate proceedings with a show-cause notice dated 28-12-1978 were started by the Excise authorities, leading to an adjudication order dated 20-12-1979 of the Assistant Collector, in which the 60 lighters were confiscated subject to a fine of Rs. 1,000/-and payment of appropriate duty, and a penalty of Rs. 500/- was imposed on the appellants. That order was however not covered in the Order-in-Appeal dated 19-12-1979 passed by the Collector (Appeals), which was concerned only with the question of classification of the said goods as contained in the order dated 26-7-1978 of the Assistant Collector (read with his previous letter dated 6-7-1978). 7. In the appeal to the Appellate Collector, the appellants submitted that their lighter did not contain any of the mechanism provided in a mechanical lighter, such as stone, flint, file or spring, nor was any gas or petrol used in it for the purpose of ignition as in the case of a mechanical lighter. As it had no mechanical or chemical contrivance for causing ignition, it did not conform to the description of mechanical lighters in T.I. 39. 8. The Collector (Appeals) in his order stated that a sample of the lighters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts width, by means of a small projection attached to the steel plate. In other words, this functions as a mechanical contrivance to cause ignition. The mechanical contrivance in this case, however, produces electronic charges. 8. In the light of the above, I have to conclude that Electrolite, which is an electronic gas lighter, is a mechanical gas lighter falling within the meaning of Item 39 of the Central Excise Tariff." He accordingly rejected the appeal. It is against this order that the present appeal is directed. 11. Appearing before us for the appellants, Shri Gopal Prasad submitted that the reasoning of the Appellate Collector was erroneous. Merely because a trigger was pressed and mechanical strain was brought on the piezoelectric crystals, the lighter did not become a mechanical contrivance. That description could apply only to an article in which the proximate cause of ignition was mechanical. It would not include a case where mechanical energy which was initially applied was transformed to electrical energy and that electrical energy resulted in a spark, which was the means of lighting the gas. 12. Shri Gopal Prasad submitted that this position had been accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellants had failed to comply with the direction of the Assistant Collector in his letter dated 26-7-1978 that the appellants should file a classification list. (The position stated at para 4 above, namely that the appellants had apparently filed a classification list already under protest, was not mentioned or noticed when this submission was made). The point of the submission was not clear to the Bench. It was pointed out to Shri Sachar that the same Assistant Collector had in his earlier letter dated 6-7-1978 clearly indicated that he had come to the conclusion that the said goods were mechanical lighters falling under T.I. 39. The appellants were obviously entitled to appeal against this decision, without going through the motion of filing a classification list. Further, since the Appellate Collector had entertained the appeal and passed an order on it, it is too late in the day to argue that the appellants should not have appealed to the Appellate Collector, or that we should not entertain the further appeal. 18. As regards the merits of the classification, Shri Sachar submitted that the lighters in question were operated by the impact of the trigger on the piez ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to houses, factories etc., can be in different forms. One is hydro-electricity, obtained from rivers etc., which is nothing but mechanical energy converted to electrical energy. If a machine is operated by electrical energy whose source is hydro-electricity, would we be justified in calling such a machine as a mechanical contrivance ? Or, to take an even more extreme example, an electrical appliance may be operated by turning a switch, which means by applying mechanical energy. Would this turn that appliance into a mechanical contrivance ? We need not multiply examples, since it is clear that electronic gas lighters of the nature of the said goods have to be regarded as electrical or electronic and certainly not mechanical. 21. As pointed out by the learned Consultant, it would be seen that the above view has been generally accepted, even by the Central Board of Excise and Customs, as seen from its Tariff Advice No. 71/81. The amendment made to Tariff Item 39 in 1982 is also an indication that the earlier description (that is, the description as it stood at the time of the present case) was not found wide enough to cover electronic gas lighters. This would also be clear from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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