9911796707
TMI Blog2000 (6) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 67/83-C.E., dated 1-3-1983, as claimed by both the Appellants or chargeable to concessional rate of duty under serial No. 10 of the said Notification. 2. Shri V. Lakshmikumaran, ld. Advocate, submitted that M/s. Phoenix Electric India Ltd. manufacture, inter alia, tungsten halogen Vaccum and gas filled bulbs/lamps; that they in their classification list claimed nil rate of duty under serial No. 5 of Notification No. 67/83-C.E., dated 1-3-1983; that a show-cause-notice dated 3-12-1991 was issued to them to amend the C.L. by providing for concessional rate of duty as per serial No. 10 of the notification; that the Assistant Collector, under Adjudication Order No. 1/92, dated 17-1-1992, ordered that modification of the C.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9-9-92 sought to classify the product under Serial No. 9 of the Notification as against their claim under serial No. 5; that in the review order as well as in the appeal filed by the Department with Commissioner (Appeals), the only case made out was with regard to serial No. 10 of the Notification; that as such a totally new case was made out by the Department in the appeal; that the point whether the impugned goods was covered by Sl No. 10 of the notification did not arise out of the order of the Assistant Collector and as such the appeal before the Commissioner (Appeals) was not maintainable. He relied upon the following decisions in support of his contention : (i) 1992 (62) E.L.T. 366 (T) - CC v. Phoenix Overseas (P) Ltd. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled up with inert gas viz Krypton gas to the extent of 99.95% and 0.05% halogen; that since it is the inert gas which fills up the bulb it will be a gas filled lamp as defined in Para 2.1.8 of the I.S.; that even para 2.1.9 of the I.S. itself recognises the position that tungsten halogen bulb is indeed a gas filled lamp; that tungsten halogen bulb is a specie of the genus gas filled bulb and, therefore, would be covered by the expression gas filled bulb appearing in serial No. 5 of the Notification. 5. Shri M. Chandrasekharan, ld. senior Counsel adopted the submissions made by Shri V. Lakshmi Kumaran and further submitted that Sl. No. 5 of the notification is a specific entry as it applies specifically to Vaccum and gas filled bulb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een categorised separately under Para 2.1.8 and 2.1.9 and as such tungsten halogen lamp is not gas filled lamp and accordingly Sl. No. 5 will not be applicable to the impugned product; that Sl. No. 5 applies only to gas-filled and such gas should be inert gas as per I.S. Specification; that halogen is not an inert gas. He finally submitted that Tungsten halogen lamp is a specific category and has to be treated separately as it has been mentioned in the Notification separately; that a specific category prevails over a general category and reliance was placed on the decision in the case of Darshan Hosiery Works v. Union of India, 1980 (6) E.L.T. 390 (Guj.) wherein Gujarat High Court held that "when a specific provision in a statute is applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This clearly indicates that it is not open to the Commissioner to traverse beyond the scope of the show cause notice and order filing of an appeal, pleading a ground which is not specified as a ground for raising demand in the show cause notice. This was the view held by the Tribunal in the case of CCE v. Sunita Textiles Ltd, 1993 (67) E.L.T. 932 (Tribunal). In the present appeal, it has not been disputed by the Revenue that show cause notices dated 9-9-1992, 26-2-1993 and 28-7-1993 were issued for demanding the excise duty as per rate specified at Serial No. 9 of the Table annexed to the Notification No. 67/83; the Assistant Collector had examined the applicability of Sl. No. 5 and Sl. No. 9 only in the Adjudication Order No. 81 to 83/93, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filled up with inert gas namely Krypton to the extent of 99.95%. This has also not been rebutted by the Revenue. As the product in question is filled with inert gas along with halogen which is only 0.05%., it is also a gas filled lamp covered by serial No. 5 of the Table annexed to the Notification No. 68/83. In Darshan Hosiery Works, the issue involved was whether "Banians and Jangias (upper and lower underwears, respectively) were classifiable under Item 68 of the Old Central Excise Tariff. The Gujarat High Court held that the disputed goods were articles of hosiery which were exempted under Item 22D and as such the expression not elsewhere specified in Tariff Item 68 will not nullify the exemption granted to articles of Hosiery by I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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