9911796707
TMI Blog1983 (9) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... 17/76/1268, dated 27-1-1977, has been disposed of separately, as having been withdrawn. This appeal arises out of the Order-in-Original No. V(Misc.)Coll/19/75-Pt. II-1375, dated 29-1-1977, dealt with in the same combined Order-in-Appeal of the Appellate Collector. 2. This case relates to the question of excisability with reference to Item 52 of the Central Excise Tariff Schedule of certain goods manufactured by the appellants. These comprise four items, which they have designated as follows :- Cylinder stud bolts Main bearing stud Cylinder head stud Long stud It was held by the authorities below that these fell under the said Item 52, as "bolts and nuts, threaded or tapped, and screws.......". As against this, it was the contention of the appellants that the goods were "high tensile industrial fasteners", and that these were not classifiable under Item 52, as they were specifically designed for use in automobiles and performed functions apart from the function of fastening. 3. Appearing for the appellants, Shri Taraporevala argued the matter at length, and made several submissions. He pointed out that in a classification list dated 11-10-1974, the appellants had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fasten various machinery parts. The only difference between normal fasteners and these fasteners was that they were made to the definite specifications on the basis of the requirements of each machine and that they were made out of specific raw material and alloys, so as to impart specific engineering advantages. However, this particular specialised requirement did not take away their basic nature and characteristics as bolts and nuts. They were basically fasteners with specific engineering advantages and hence rightly classifiable under Tariff Item No. 52. With these observations, he rejected the appeal. 4. Although Shri Taraporevala had argued at considerable length, it would be sufficient, for reasons which will appear below, to deal only with the two main points advanced. 5. Shri Taraporevala placed considerable reliance on a decision of the Bombay High Court relating to windscreens for motor vehicles, reported at 1982 E.L.T. 237 (Bom.). (The title of the case has been shown therein as Svadeshi Mills Company Limited v. Union of India and Others, but Shri Taraporevala stated that this was an error and that the petitioners were actually Maharashtra Safety Glass Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff entry, or a pronouncement of the Supreme Court or a High Court. 8. Replying to Shri Taraporevala, Shri Tayal first took up the question of the competence of the Assistant Collector to review a previous decision on assessment. Shri Tayal strongly relied on the judgment of the Delhi High Court in the case of Bawa Potteries, Mehrauli v. Union of India and Another, reported in 1981 E.L.T. 114 (Del.). He relied on the finding in that judgment that a power of review is inherent in the provisions of Rule 10 of the Central Excise Rules, and argued that a review was permissible if the appropriate authority came to the conclusion that the earlier assessment was wrong. He also relied on the judgment of the Andhra Pradesh High Court in the case of Southern Steels Limited, Hyderabad v. Union of India and Others, reported in 1979 E.L.T. 402, in which it has been observed that even though the Department had over a prolonged period not questioned the position taken up by the assessee that his goods were not dutiable, this would not prevent them from levying duty whenever they came to the conclusion that a description in the classification list was not correct and that according to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and pointed out that in respect of cylinder stud bolts and long studs there was no indication of the name of the manufacturer to whom they were to be supplied (unlike some other items included in the list). This showed that the appellants had not even furnished material to support their basic plea that the goods were specially made for a particular use. 11. As regards the question of time bar, Shri Tayal stated that he was handicapped as this had not been the subject of decision by the lower authorities. He conceded that in this case there had been no suppression or clandestine removal but even then the time limit of one year as then applicable under Rule 10 read with Rule 173J would be applicable. 12. Replying to Shri Tayal, Shri Taraporevala reiterated that the Assistant Collector did not have the power to review his predecessor's decision. He also observed that the judgment of the Delhi High Court in the case of Bawa Potteries was earlier than the judgment in the case of J.K. Synthetics and the former judgment did not go into the question of the Assistant Collector's power of review. 13. As regards the point that no claim had been made for classification under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34A is kept out of consideration, the only question would be whether or not the goods could be considered as bolts and nuts, etc. within the meaning of Item 52. It would then become relevant to consider whether the Assistant Collector and the Appellate Collector were right in holding that the goods had no real function to perform apart from that of fastening. We feel, however, that it would not be proper for us to take a narrow view and completely rule out consideration of Item 34A. Although this case is not exactly the same as the windscreen case, there are weighty observations in the Bombay High Court judgment on that case which would be relevant to the present case. The question whether Item 52 or Item 34A was more specific and appropriate in relation to these goods would also require careful consideration in the light of all the facts and evidence. We consider that in the interests of justice the question of possible classification under Item 34A should also be examined. Since, however, this plea was not specifically raised at the earlier stages. It was not dealt with by the authorities below, and it would not be proper for us at the stage of second appeal to embark on an exam ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
