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TMI Blog2010 (4) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants the product is classifiable under chapter 7308.90 whereas according to the Department it is under chapter heading 7306.90. The authorities below have approved the classification as has been sought to be made by the Department. 3. The appellants aggrieved by the said decision has filed this appeal essentially on the ground that the issue regarding the classification of the product in question stands concluded by the decision of the Tribunal in the matter of appellants themselves which was delivered under Final Order No. 474-478/06-Ex. dated 8-5-2006 and the said decision has been accepted by the Department and there has been no challenge thereto. On the other hand, the authorities below have confirmed the demand while rejecting the claim of the appellants by placing reliance on the basis of the Circular issued by the Board being Circular No. 139/4/98-CX.4, dated 6-9-2000. 4. Learned Advocate appearing for the appellants placing reliance in the decision in the appellants own matter referred to above as also in the matter of C.G.M. Telecom Factory v. Collector of C. Ex., Bhopal reported in 2001 (134) E.L.T. 464 (Tri.-Del.), Collector of Central Excise v. Shivaji Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read thus :- "26AA IRON OR STEEL PRODUCTS, THE FOLLOWING NAMELY: (i) Semi-finished steel including blooms, billets, slabs, sheet bars, tin-bars and hoe bars. Three hundred and fifty rupees per metric tonne. (i-a) Bars, rods, coils, wires, joists, girders, angles other than slotted angles, channels other than slotted channels, tees, flats, beams zeds, trough, pilling and all other rolled, forged or extruded shapes and sections not otherwise specified. Three hundred and fifty rupees per metric tonne. (ii) Plates and sheets (including uncoated plates and sheets intended for tinning, and forms such as ridges, channels, rain water pipes and their fittings made from plates or sheets but not including plates and sheets after tinning) and hoops all sorts other than skelp and strips. One thousand three hundred and fifty rupees per metric tonne. (iii) Flats skelp and strips. One thousand three hundred and fifty rupees per matric tonne. (iv) Pipes and tubes (including blanks thereof) all sorts, whether rolled, forged spun, cast. drawn, annealed, welded or extruded. One thousand rupees per metric tonne plus the excise duty for the time being leviable on pig iron or steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Conference also noted that tubular poles are specifically covered by this heading. Since, the subject goods were of the type of tubular poles are part of the structures (Transmission/telephone line system), they would be squarely covered under Heading No. 7308. 4. In view of the foregoing, the Conference recommended that Steel Tubular Poles (Commercially known as Transmission Poles) will be rightly classifiable under sub-heading No. 7308.90 of the Central Excise Tariff Act, 1985. 5. The Board agrees with the above recommendation of the Conference and accordingly, it is held that Steel Tubular Poles (Transmission Poles) are rightly classifiable under sub-heading No.7308.90 of Central Excise Tariff Act, 1985. 6. All pending assessments may be finalized accordingly. 7. Field formations and Trade may be suitably informed." 9. However, subsequently taking into consideration the decision in the matter of Quality Steel Products Pvt. Ltd. v. Collector of Central Excise reported in 1993 (65) E.L.T. 513 (Tri.) and further the decision of the Apex Court in the matter of Indian Metals & Ferro Alloys Ltd. v. Collector of Central Excise reported in 1991 (51) E.L.T. 165 (S.C.) a new circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent methods. The so called manufacture is nothing but the putting together of a number of pipes or tubes by one or other of the processes mentioned in the tariff item. The goods produced, therefore, do not cease to be iron and steel products or pipes and tubes of the description mentioned in item 26AA(iv). It may not be also correct to characterize them as different commercial commodity. Some of them are called poles an expression which means a long slender piece of metal or wood commonly tapering and more or less rounded. Electric poles, being hollow one, are not much different from piles and tubes. The statement that they are commercially distinct commodities is merely based on their being called 'poles'. They are also available in the same market in which normally pipes and tubes are otherwise available. Neither the circumstance that certain processes to the "mother" pipes or tubes nor the fact that in other to identify the particular type of tube or pipe one needs, one may use different names is sufficient to treat the article as commercially different commodity." 2. Following the detailed reasoning by the Apex Court in aforesaid decision, the CEGAT in case Quality Steel Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to pipes and tubes (including blanks thereof) all sorts, whether rolled, forged, spun, cast drawn, annealed, welded or extruded. It is comprehensive enough to take in all sorts of pipes and tubes and even those obtained by the processes of forging, drawing and so on. The ultimate product in the present case is merely a set of pipes or tubes of different diameters attached to one another by different methods. The so-called manufacture is nothing but the putting together of a number of pipes or tubes by one or other of the processes mentioned in the tariff item. The goods produced, therefore, do not cease to be iron and steel products or pipes and tubes of the description mentioned in Item 26AA (iv). It may not be also correct to characterize them as a different commercial commodity. Some of them are called poles, an expression which means "a long slender piece of metal or wood commonly tapering and more or less rounded". Electric poles, being hollow ones, are not much different from pipes or tubes. The statement that they are commercially distinct commodities is merely based on their being called 'poles'. They are also available in the same market in which normally pipes and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structed, any piece of work artificially lock-up can be structure but not necessarily a building as it was observed in Bharat Petroleum Corporation of Greater Bombay, reported in 1-Bombay-C.R. Page 310. But there is no evidence to show the poles manufactured by the parties would fit into structure as and when so used as parts of structures or they were prepared for use in structures. We are not convinced with the arguments of the D.R. that the goods in question have to be treated as structurals since they bear load and were manufactured as per I.S.I, specifications. Although it has got an incidental loading capacity, it is only theoretical load and not significant as the predominant function of the tubular poles is to provide medium not to expose wires and as such these cannot be called as structurals as it was argued by the Representatives of the Assessees. It is settled principle that unless the Department can establish that the goods in question can, by no conceivable process of reasoning, be brought under any of the tariff items, resort cannot be had to residuary item as it was held in the case of Bharat Forge & Press Industries v. Collector [1990 (45) E.L.T. 525 (S.C.)] and sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to the decision in the Apex Court in Quality Steel Products Pvt. Limited. None of them refers to the Circular of the Board dated 6-9-2000. 15. The letter of the Deputy Commissioner dated 23-3-2010 does not refer to any authoritative decision by the Department on the point of acceptance of the decision in the appellants own case delivered on 8-5-2006. The letter written by Deputy Commissioner do not refer to any decision by authoritative body of the Department who can confirm as to whether a view taken by the Tribunal in a particular decision is finally accepted by the Department or not. Obviously, the decision in this regard would be a policy decision and would require the necessary sanction by the Board in terms of the provisions of law. Such a decision cannot be taken at the stage of Deputy Commissioner. Being so, no credence can be given to the letter dated 23-3-2010 written by the Deputy Commissioner stating that the Department has accepted the decision of the Tribunal dated 08-05-2006. The letter does not disclose any authority to Deputy Commissioner to issue any such letter on the subject in issue. 16. For the reasons stated above, prima facie there is no case made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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