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TMI Blog1988 (8) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ategorical directions of the local Central Excise Officer, the appellant company failed to take out licence and to pay duty. Accordingly, the learned Additional Collector confiscated the 60 pieces of tool cabinets allowing the appellant company the option to redeem them on payment of fine of Rs. 20,000/-. He also imposed a penalty of Rs. 10,000/-. The appeal before us is against this order. 3. We have heard Shri S.N. Mathur, consultant on behalf of the appellant company and Shri LC. Chakravorty, JDR on behalf of the department. 4. The learned consultant heavily relies on the clarification issued by the Central Board of Excise and Customs vide their F. No. 33/26/68-CX. VII, dated 21-11-1968. In this letter, it was clarified that specially designed manufactures of steel like counters, storage cabins, cat-walks etc. for use in industrial establishments cannot be regarded as steel furniture. It was pointed out in this letter that as per the Explanatory Notes to the B.T.N. only movable articles which have the essential characteristic that they are constructed for placing on the floor or ground and which are used mainly with the utilitarian purpose to equip private dwellings, hotels, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roader interpretation to the scope of Central Excise Tariff Item 40 then visualised in the Board s letter of 21st November, 1968. In the Chandan Metal Products (P) Limited v. State of Gujarat, the Gujarat High Court held that shelving racks and binstaks manufactured from iron and steel and sold by a company manufacturing iron and steel products and component parts thereof were iron and steel furniture within the meaning of Bombay Sales Tax Act, 1959. Adopting this view in the case of M/s. Nima Limited v. Collector of Central Excise, Baroda (Order No. 384/1987-D), dated 12-5-1987, this Tribunal held that sliding storage system which is mounted and moved on fixed rails is correctly classifiable under Item No. 40 of Central Excise Tariff. This view of the Tribunal was confirmed by another order No. 587/1987-D, dated 27-7-1987 in the case of Collector of Central Excise, Cochin v. M/s. New Chelur Manufacturers. Referring to the Gujarat High Court decision which had held that storage racks would be classifiable as steel furniture, it was held that even though steel furniture of large dimensions was to be fabricated out of the products manufactured by the respondents, these would be parts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Board of Excise and Customs relied on the Explanatory Notes to the BTN which were cited as making it clear that only movable articles which have the essential characteristics that they are constructed for placing on the floor or ground and which are used mainly for the utilitarian purpose to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafes, restaurants, laboratories, hospitals, dentists, surgeries etc. or ships, aircraft, railway coaches, ambulances, caravan-trailers or similar means of transport, should be regarded as covered by the term furniture . These instructions of the Board were later on superseded by Central Board of Excise and Custom s order No. 33/1/69-CX.4, dated 15-5-1970, which was in the nature of a Tariff Advice, which purported to say that the Board had reconsidered the matter as regards the scope of Central Excise Tariff Item No. 40, in the light of the Gujarat High Court decision in M/s. Chandan Metal Products (P) Limited in consultation with the Ministry of Law and that it had been decided, taking also into account the ordinary meaning of furniture in the Shorter Oxford Dictionary, namely, movable articles in a dwellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a metal container is not sufficient to describe them as an article of furniture. It is obvious that the Assistant Collector was more impressed by the nomenclature given to the articles than to determine whether it is an item of furniture. In my judgment, the view taken by the Assistant Collector is clearly erroneous and the reliance on the Notification was totally wrong. It is not in dispute that the expression steel furniture is known in common parlance as an article devised for giving comfort to human being. The seven articles manufactured by the petitioners do not satisfy that test and the order of the Assistant Collector and the Appellate Authority holding contrary is clearly erroneous and cannot be sustained. The petitioners are, therefore, entitled to the relief claimed in the petition." (iv) Even as regards interpretation for Sales Tax purposes, the Bombay High Court in their decision in the case of Union Sales Corporation (1977 Vol. 39 STC 452) held that motorised elevator mobile copper roller road racks would not be furniture. These were power operated storage racks used in the printing department and were moved backward and forward as well as upward and downward by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance in our opinion, this concept of user and perhaps also, of the price to be paid for those items, would offer us a good guide in concluding whether they are pieces of furniture. 13. The above discussed view was upheld by the Supreme Court. 14. While passing orders in the case of M/s. Nima Limited v. Collector of Central Excise, Baroda (supra) and Collector of Central Excise, Cochin v. M/s. New Chelur Manufacturers (supra), the orders of the Bombay High Court and of the Supreme Court in the case of Elpro International Ltd. v. Union of India and Others (supra) were not cited. In view of these orders, I must depart from my earlier view in taking a decision as regards classification of tool cabinets in the present matter. Appellants have contended before us that they are not manufacturers of steel furniture. The impugned goods are made to specific and special requirement of the plant and they are not bought and sold in the market as furniture. In the order appealed against, there is no denial of these facts; nor are these denied before us by the learned SDR. 15. In the light of the foregoing discussion, it has to be held that the goods in question fall outside Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff. I am mentioning this fact only to highlight that even the appellants were evidently originally of the impression that the goods in issue are furniture but only that they fall outside Item 40 Central Excise Tariff. But that does not disentitle them from contending that their original impression was wrong and they should be entitled to contend that the goods are not furniture. 19. After this Tribunal had issued orders in the cases of Nima Ltd. (supra) and New Chelur Manufacturers (supra) the question as to what would be furniture again came up for consideration in the case of M/s. TELCO Ltd. in Excise Appeal Nos. E/744/82-D, E/1276/82-D and E/1559/82-D. In the hearing of those appeals the Learned Counsel for the appellants therein drew our attention to an unreported decision of the Bombay High Court in the case of M/s. Elpro International Ltd. and the decision of the Supreme Court on appeal therefrom (with reference to one of the articles under consideration in that case) as reported in 1985 (19) E.L.T. 3. After taking into consideration the said decision of the Supreme Court I had held, summarising the discussion with reference to the considerations that should prevail for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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