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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 ..... e appellants against the order dated 28-9-2001 which was passed by the Assistant Commissioner, Jabalpur whereby demand of duty to the tune of Rs. 8750688/- was confirmed along with interest payable thereon and the penalty amount of Rs. 10 lakh against the appellants. 2. The dispute relates to the classification of the product manufactured by the appellants. The appellants are the manufacturers of taper steel tubes for telephone poles. According to the appellants 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 308.10 - Bridges and bridge-sections 7308.20 - Towers and lattice masts 7308.30 - Doors, windows and their frames and thresholds for doors. 7308.40 - Equipment for scaffolding, shuttering, Propping or pit-propping. 7308.50 - All goods fabricated at site of work for use Construction work at such site. 7308.90 - Other" 7. Prior to enforcement of the present tariff classification system the law in that regard which was in force as was introduced in the year 1962, the relevant tariff item was under 26AA and it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruled out the classification of the subject goods under sub-heading 7306.90 as "Other tubes and pipes" because, they did not have a uniform cross section and hollow profiles because they have been further fabricated into identifiable articles. The classification under sub-heading No. 7326.90 would be possible only, if no other heading is applied. The Conference noted that as per Explanatory Notes under heading No. 7308 complete or incomplete material structures as well as parts of structures which are characterized by the fact that once they are put in a position, they generally remain in that position and which are usually made from bars, rods, tubes etc. are covered by this heading. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of a fluid. This is not therefore a sound objection. In regard to the second point, it is perhaps sufficient to point out that sub-item (iv) to item 26AA 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 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 different commercial commodity. Some of them are called poles an expression which means a long slender piece of metal or wood commonly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, it will be appreciated that, just as pipes and tubes are generally intended to carry a fluid from one place to another, the poles with which we are concerned enable wires to be passed through them for the transmission of electric energy, a function not very very different in nature from that of other ordinary pipes and tubes. That apart, even tubes and pipes are not always necessarily used for such purpose. They can be used as flag-masts or for purposes of scaffolding or other purposes where they do not serve as a medium for the transmission of a fluid. This is not, therefore, a sound objection. In regard to the second point, it is perhaps sufficient to point out that sub-item (iv) of Item 26AA 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) and the circular issued by the Board dated 6-9-2000, prima facie it is difficult to accept the contention sought to be canvassed on behalf of the appellants. Sub-heading 73.08 which is quoted herein above clearly refers to structures and not to the tubes and pipes. They are essentially in relation to the structures or the parts of the structures. The pipes and tubes, merely because they are used as the poles for supporting the telephone wires, they do not themselves get transformed as structures. This aspect has, in fact, been considered in detail in the decision of the Tribunal in the matter of Quality Steel Products Pvt. Ltd. Therein it was held thus :- "Structure means anything built or constructed, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 8-5-2006 in the appellant's own case. However, fact remains that the Apex Court while deciding the matter in relation to the Quality Steel Products Pvt. Ltd., has clearly held that the steel tubular poles cannot be treated as structure and are clearly classifiable under tariff heading No. 7308.90. It is pertinent to note that the decision in the appellant's own case delivered on 8-5-2006, there was no reference to the decision of the Apex Court in Quality Steel Products Pvt. Limited. It does not appear to have been brought to the notice of the Tribunal in the said decision. In fact, in none of the decisions sought to be relied upon on behalf of the assessee in support of their claim, there is reference 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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