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TMI Blog2014 (4) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [2011 (6) TMI 657 - BOMBAY HIGH COURT] which referred Green Flashlight Industries Ltd. v. Union of India [1984 (8) TMI 85 - SUPREME COURT OF INDIA] and O.K. Play (India) Limited v. Commissioner of Central Excise [2005 (2) TMI 114 - SUPREME COURT OF INDIA] held that where the statute expressly refers or alludes to other instruments or documents such as CET/HSN classifications, then alone would those classifications have to be looked into for the purposes of interpretation - In the absence of such express reference – in the parent statute – the reference through a circular, cannot guide the plain and commercial parlance meaning of the expression attributed to the article or goods in question. When there is clear guidance by the statute i.e. the DVAT Act as to in respect of which articles or goods the HSN and CET would have to be referred as part of the statute, it is not logical to import, for the purpose of interpretation, HSN/CET references to articles of goods which do not contain any such references - Here “the common parlance test is applicable” - The Indian Electricity Act and the Electricity Supply Act as well as the Rules and Regulations under these enactments would guid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant relied upon orders of the Commissioner in Section 84 determinations in Techno (P) Ltd. dated 16.10.2008 and in M/s Netlab Solutions Inc. In both these determinations the concerned Commissioners had ruled that if the statute expressly referred to CET/HSN descriptions the tax administrators would be bound by it and correspondingly in the absence of such express reference the common parlance test had to be applied. The Commissioner however did not accept the dealer's arguments on this score in this case which led to an appeal to the Tribunal. 6. The impugned order contains a duality of opinions; the Chairman accepted the contentions of the dealer-appellant and relied upon certain rulings including that of the Bombay High Court in Commissioner of Sales Tax v. Dev Enterprises Ltd., (2011) 42 VST 504 (Bom). It was held further that the circulars which the Commissioner had relied upon could not be binding, at any rate could not prevail over the express terms of the statute. The minority opinion of the Chairman also relied upon other judgments. The majority view however by its reasoning upheld the determination of the Commissioner and found no infirmity with it. 7. Learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and lists out 10 different kinds of cables and further enumerates that each one of that is classifiable under the Central Excise heading. At the same time, this Court cannot be oblivious of the fact that that Entry No.40 does not refer to any CET. Likewise, the Circular of 17.02.2000 describes what industrial cables are, and Circular No. 51 further limits the scope of various descriptions made in the first circular of 16.09.2005 by stating that such cables having cross sections of „core from 0.5 to 6.0 sq. millimetre' meant for nonindustrial use underlying "would be classifiable under Entry No.40". It is apparent that the circulars in fact add to and also substitute from the main heading "industrial cables". This is because the Entry nowhere refers to any heading of the CET. Having not done so, the department appears to even cut down the amplitude of the description "industrial cables" by excluding non-industrial cables or wires of a certain width in the last circular No.51 of 2005-06. 10. Dev Enterprises Ltd. (supra) made an exhaustive and elaborate study of this aspect in the context of classification, and after taking note of certain prominent judgments of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, sub-heading, matches fully with the corresponding description in the Central Excise Tariff, then all the commodities covered for the purposes of the said tariff under that heading or sub-heading will be covered by the scope of this notification. Note: (4) Where the description against any heading or subheading is shown as "other", then, the interpretation as provided in Note 2 shall apply." 11. In view of the above provisions this Court is of the opinion that when there is clear guidance by the statute i.e. the DVAT Act as to in respect of which articles or goods the HSN and CET would have to be referred as part of the statute, it is not logical to import, for the purpose of interpretation, HSN/CET references to articles of goods which do not contain any such references. In the latter circumstance, as in the present case, "the common parlance test is applicable". 12. Now as to the circumstances of this case the assessee has relied upon the definition of "cable" in Section 2(g) of the Industrial Electricity Rules; "voltage" in Section 2(av) of the Indian Industrial Rules. These are extracted for facility of easy reference. Section 2 (2) of Central Electricity Authority (Furni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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