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TMI Blog1986 (8) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Department on the approval of the classification list. While so on 28-10-1978 the Superintendent, Central Excise, requested the appellants to show cause why galvanised stranded wire should not be classified under Item 68 instead of 26AA (ia). The appellants replied that the demand of duty was illegal. However, the appellants were compelled to pay duty on galvanised stranded wires under protest. Since the classification was already approved the demand for duty under Item 68 is not justified. There was no further enquiry either. The appellants, therefore, filed a wirt petition before the Hon ble Kerala High Court for quashing the same. The Hon ble Kerala High Court directed the Collector of Central Excise to hold an equiry as expeditiously as possible and after giving an opportunity to the appellants to substantiate their case. On 20-3-1980 the Collector of Customs and Central Excise, Cochin confirmed the earlier decision and held that galvanised and ungalvanised steel wires were classifiable under Tariff Item 68 of the Central Excise Tariff. Aggrieved by the said order the appellants moved the Central Board of Excise and Customs, New Delhi. It was contended, inter alia, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having distinctive name, character or use . 1978 (2) E.L.T. 336, South Bihar Sugar Mills Ltd. and another etc. v. Union of India and another etc., also reiterates the same position. Shri Koshy submitted that if there is a doubt regarding the classification the benefit of the same should be given to the assessee. He urged that the Department has not discharged the burden cast on it in order to classify the item under Item 68 of the Central Excise Tariff. In 1986 (24) E.L.T. 388, Collector of Central Excise, Cochin v. Fertilizers and Chemicals, Travancore Ltd., the Tribunal has observed that the burden of proof is on the Department and a specific tariff item has to be preferred to the general. The learned Councel drew our attention to the entry and argued that the item referred to all other rolled, forged or extruded shapes and sections not otherwise specified and stated that it was wide enough to include the products manufactured by the appellants. 5. Shri Koshy also urged that the demand was issued on 2-11-1981 for the period 1-3-1975 to 31-3-1980 and was manifestly time-barred. He stated that the process of stranding would not bring into existence a totally new product known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved by the Assistant Collector. Shri Koshy stated that once the list is approved, the excise authorities can only take recourse to the appropriate provisions of the Act. In this connection he referred to the decision in 1986 (23) E.L.T. 318, Ajanta Iron and Steel Company Pvt. Ltd. v. Union of India and others, where the Hon ble Delhi High Court had occasion to consider the effect of approval of the classification list by the Assistant Collector. In that case one Assistant Collector had approved the classification list for an earlier period. On appeal, the Appellate Collector had accepted the assessee s new point. A show cause notice was issued by another Assistant Collector, to re-open the question with respect to the same period. The High Court held that the show cause notice was not valid. It is unnecessary to give a finding if the classification list once approved. A show cause notice could not be issued in view of our findings on merits of the case. 7. The Department want to classify the item under Item 68. It is well-settled that the levy of duty under Item 68 could be made only if the products do not fall under any of the other items. For the purpose of a clear underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s had been paying the duty under protest. Later on 9-8-1979 the appellants were permitted provisional assessment for ungalvanised wire under Tariff Item 26AA. The facility for provisional assessment was withdrawn on 13-8-1979; hence the appellants went before the Hon ble Kerala High Court. The Hon ble High Court directed the Collector to consider the representations of the appellants. Significantly the Collector did not issue any fresh show cause notice. He has held that the products manufactured out of steel products could not be considered as wires and stranded process was a manufacturing process. But the orders of the Collector indicate that at all times the product continued to be wire. He would call it the stranded wire . There is no separate item for stranded wires. It is not known how after stranding the product which continued to be wire, would hop into Item 68, especially, when sub-item (ia) covers all rolled items not otherwise specified. On the facts of the present case it is manifest that the stranded wires continued to be wires under Item 26AA(ia). Since there is no change in the pattern of manufacture the classification list approved cannot be ignored and a fresh cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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