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TMI Blog1986 (3) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... e other case copper. The manufacturers M/s. Indian Explosives Ltd. (IEL) make detonators which are used in explosive for blasting work in coal-mines, stone quarries. In both cases sheets of the metal, aluminium or copper, as the case may he, are taken to make a small cylinder like article in which the initiating charge is put and embedded in the blasting explosive compound. Another fact which needs to be taken note of at the beginning is that the Collector (Appeals) said that the article manufactured from the aluminium strip was a container, while the similar article made from copper was a tube and there lies the paradox. 2. The learned counsel for the appellants said that they manufactured the aluminium article, called a container by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inium tooth paste tubes were known as collapsible tubes. Thus, he thought that while the aluminium cap could be a container, the copper cap could not be a container. Unfortunately, if the aluminium could be a container, the copper also could be a container because they both receive and hold similar kinds of substances, that is, explosives. On the other hand, if the copper cap can be a tube, the aluminium cap can just as easily be a tube. The two caps look alike in form and, therefore, we can see no good reason why one should be a container, while the other should be a tube. 4.A container is defined in the tariff under items 27 and 46 as "ordinarily intended for packaging of goods for sale, including collapsible tubes, casks, drums, cans, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply containing. If we were to go by simply containing, then every bomb would be a packaging of goods for sale and every cartridge would qualify because it has the explosive under the outer shell; every explosive device contains trinitrotoluene or gelignite or nitroglycerine or some such explosive substances in an outer hard shell or case. The packaging that Qualifies a container to the tariff item, must be a packaging for sale, not a mere packing to contain or to hold. Packaging requires that the container as well as the contained material will change hands one day in commerce and both the container and its contents will become the property of a new owner on such transaction. The detonator cap is not only not meant to present the explosive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with one end closed. In those conditions it will never qualify to be a tube. We can get a good picture of what a tube is understood to be if we refer to the Harmonised customs tariff. The Harmonied customs tariff was introduced in the Customs Tariff (Amendment) Bill, 1985, and is a more elaborate version of the Customs Co-operative Council Nomenclature. Here is how it describes tubes and pipes: "Hollow products, coiled or not, which have a uniform cross-section with only one enclosed void along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness". This tariff contains the most scientific tariff descriptions we have se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980's to charge the party with having manufactured goods without declaration, and with having suppressed information and kept facts hidden in order to evade duty. The central excise knew quite well what the factory was doing. The Appellate Collector says as much in his order on the copper caps. He said that the central excise officers at Dhanbad who were in charge of the factory of the appellants should have known of the manufacturing process of the appellants and they should have raised the demand earlier. Legally, it was the duty of the appellants to declare what they produced in the factory even if it was for captive consumption. There had been mandatory violation of rule 173 but this did not justify imposition of penalty. He accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory has a tube shop and this proves the thing was a tube. We cannot follow this. The factory does not have a "container shop", but this did not prevent the aluminium caps being called containers. 11. The department's counsel also referred to the Supreme Court Dunlop judgment to say that use was irrelevant. We are of the same mind; but the department's argument is about a tube and a container where use is the same. Do they claim that use of the products was irrelevant because when the aluminium thing was used in a detonator, it is a container and where the copper thing was used likewise, it is a tube ? Does one use produce two products ? or do two products become one product, and if so, what product ? It is wacky. 12. The judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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