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TMI Blog1985 (5) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... f as nuts and bolts @ 15% ad valorem, whereas, as per the contention of the respondents, which has been upheld by the Appellate Collector, the products in question are unspecified motor vehicle parts, classifiable under Tariff Item 68 and chargeable to duty @ 10% ad valorem. 4. On behalf of the appellants, it is stated that the respondents got approved the classification list No. 23/79 dated 7-9-1979, categorising their products as unspecified motor vehicle parts falling under Tariff Item 68 of the CET. On subsequent scrutiny, however, the department came to the view that some of the products listed were not unspecified motor vehicle parts and were, in fact, nuts and bolts, to be used in motor vehicles. It is felt that these were, therefore, liable to duty under Central Excise Tariff Item 52, as their primary function was fastening. The respondents were, therefore, issued a show cause notice on 19th February, 1982, to show cause why the approved classification list should not be modified and why the items in question should not be classified under Central Excise Tariff Item 52. In his order, issued in consequence of these proceedings, the Assistant Collector, Central Excise, Ludh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of quasi judicial powers, he should have examined the matter on merits. It is also stated that the Collector (Appeals) has, in another case, earlier given a different finding. This was in his Order dated 7-1-1978, relating to the case of M/s. Oswal Vanaspati General Industries, Ludhiana. 8. Appellants have cited the following case law in their favour :- (1) Delhi High Court decision in the case of M/s. J.K. Synthetics Ltd. and Another v. Union of India and Others (1981 E.L.T. 328). (2) Bombay High Court decision in the case of Simmonds Marshal Ltd. v. M.R. Baralikar, Asstt. Collector, Central Excise, Pune Others (1984 2 E.C.C. 42). (3) CEGAT decisions in the following cases :- (a) M/s Nuchem Plastics Ltd., Faridabad, v. C.C.E., Delhi (1983 ECR 1888 D). (b) Sri Ramdas Motor Transport Ltd., Kakinada v. C.C.E, Madras (1983 E.L.T. 2067). (c) M/s. Fit Tight Nuts Bolts v. C.C.E., Rajkot (CEGAT D Bench Order No.661-63/84, dated 28-11-1984 - 1985(21) E.L.T. 717 (Tribunal). 9. On behalf of the respondents, Smt. Shyamla Pappu, learned Advocate, stated that the disputed goods had been cleared by the respondents on payment of duty as per classification list approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents also urged that quasi judicial decisions given in their case by the Collector (Appeals), Central Excise, Delhi, in his order number L53-CE/72 and by the Government of India in their order in Revision No. 841 of 1975, are binding on the appellant. There is no change in law, no new facts, nor any contrary decision by any High Court or by the Supreme Court to warrant re-opening of the matter. 15. It is further urged before us that while in this matter the show cause notice for modification of the classification list has been issued under Rule 175B(5), the action, in fact, amounts to assuming by the Assistant Collector the power of review of decision taken at his own level, which has no basis in law. It has been urged that powers of review cannot be inferred. They must be specifically vested under the law. The rules must be subservient to the Act. Under Section 11 A, the powers vested are limited in nature and these cannot be exceeded by the interpretation given by the Department to the scope of Rule 173B(5). 16. Contrary to the claims of the Department, it is pointed out that the products in question are not commonly known or available as nuts, bolts and screws, but known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame legally and factually as it was at earlier occasion. In saying so, it is not meant that an authority cannot revise its earlier stand if there are cogent reasons such as fresh facts or changes in the relevant Tariff Entry, etc. 19. We refer here to the case of Dwarika Das Keshav Dev Morarka v. CIT (1962 44 ITR 529), B.D. v. CIT (1963 49 ITR 139) and Instalment Supply (P) Ltd. and Another v. Union of India and Others (1962 2 SCR 644) in which it was held that in matters of taxation, there is no question of res judicata because when fresh material came to the notice of the Taxing authority, it has the power to re-orient or re-consider the amount of tax paid. 20. We would also like to re-produce below, for our benefit the observations of Mr. Prakash Narain, CJ, and Mr. S. Ranganathan, J, in the aforementioned case of J.K. Synthetics Ltd. and Another :- There are indeed a large number of decisions of several High Courts and the Supreme Court on various questions arising under the Income-tax Act, holding that neither the assessee nor the Department is to be held bound by a stand or attitude adopted by it in an earlier year or on an earlier decision. Indeed, the Supreme Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained. In such cases, the Department still has the remedy of enunciating its views in another case where its hands are not so tied and matters can be pursued therein. 22. We may also refer here to the decision of the Bombay High Court in the case of Karsan Dass Ranchod Dass [1972-83 ITR 256 (Born.)], in which it was held that while the principles of Res judicata and estoppel are not applicable in review matters and earlier decision cannot be considered conclusive or immutable for all times, such decision can be ignored or brushed aside only for good and cogent reasons. 23. We concur with the above views and are of the opinion that, as summed up in the decision of the Delhi High Court in J.K. Synthetics case, what is necessary is a harmonious re-conciliation between two well established positions - firstly that every assessment is a separate and independent subject matter and then, therefore, the fact that a particular view has been taken in respect of a matter on one occasion does not prevent the authorities as well as the assessee from approaching the matter from a different standpoint on a different occasion and, secondly, that there has to be a finality to all litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Bill, 1979, Tariff Item 34A was amended so as to include only 15 specific parts and accessories of motor vehicles. In consequence of this change in the Tariff Item, the Department had taken the stand that all parts and accessories of motor vehicles, not covered under Tariff Item 34A, should be classified under other specific headings of the Central Excise Tariff. Where any parts did not get covered under any other specific Tariff Item, they would be covered under Tariff Item 68 of the Central Excise Tariff. The respondents claimed that their products in question would be classified under Tariff item 68. The Department, however, held that Tariff Item 68 was a residuary item recourse to which could be had only if the products to be classified were excluded from other specific entries. 27. The respondents, have argued that as far back as in 1979, the Department had carefully considered the correct classification of their products. As a result of such consideration, certain products were held by Assistant Collector to be classifiable under Central Excise Tariff Item 52. In respect of almost all these products, the Appellate authority had set aside the order of the Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he light of the foregoing discussions, we hold that the proceedings of the department, initiated by the Assistant Collector, both in regard to jurisdiction and on merits, were valid and maintainable in law. This finding is without prejudice to the merits as regards the actual classification of goods. 31.Coming now to the Order appealed against, i.e. of the Appellate Collector of Central Excise, New Delhi, No. 51-CE/CHG/83 dated 4-3-1983, we are surprised to find that he has not gone into the merits of the case. While agreeing with the Assistant Collector that proceedings under Rule 173B(5) are jusified and legal , he has not applied his mind at all to the question of the correct classification of the goods. All he has stated is as under :- But a question arises whether the classification list has been wrongly approved in this case. I do not think so in view of the orders of the Appellate Collector and the Government of India s order-in-revision. Since there has been no change in legal position so far as description of item No.52 is concerned, the Order-in-Appeal as well as the order-in-revision are both binding on the Assessing Officers. I observe that Item 68 was introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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