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TMI Blog1984 (1) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... parties identical issues arise, although in consequence of a show cause notice dated 10-4-1981 for the period between February, 1980 and 25-11-1980. Obviously, the period relevant for the said Appeal (No. 921/83) was already comprehended in the proceedings initiated in terms of the show cause notice issued in this Appeal. Nevertheless, it would appear that both the cases were adjudicated and appeals filed were also disposed of by separate orders although, as it is now rather belatedly, conceded, no amount of duty for identical periods could have been either demanded or confirmed twice over in respect of identical goods manufactured by the self same manufacturer for periods that overlap. The ratio of this decision, in the circumstances of the case, however, will apply equally to the aforesaid Appeal No. 921/83. 3. The facts, in so far material, are :- (a) the Respondent submitted an application on or about 4-8-1979 for the issue of a licence as well as the approval of a classification list annexed to it, in respect of headlight covers made of glass with optical properties for use in motor vehicles and tractors under Item 68 of the First Schedule. It was alleged in the forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be paid under Rule 10 of the Central Excise Rules, 1944, on account of the clearance of headlight covers from 1-12-1979 to 30-4-1981 valued at ₹ 17,99,572.80 without payment of duty at the appropriate rate of 20% ad valorem under a false declaration to the effect that they had optical properties and were specially designed for use in motor vehicles and tractors etc. (It will be observed from the paper book filed in this appeal that the show cause notice at pp. 47-48 was a notice issued in Appeal No. 921/83. The notice in this case was filed in the paper book relating to Appeal No. 921/83. This mix up need not have occurred); (g) the aforesaid notice to show cause would appear to have been amended by a corrigendum dated 22-2-1982 requiring the respondent to pay duty under Rule 10 of the Rules for the period 1-12-1979 to 16-11-1980 and under Section 11A of the Act for the period 17-11-1980 to 30th April, 1981. The corrigendum was, perhaps, thought necessary in the context of the repeal of Rule 10 and its re-enactment as Section 11(A) on or about 17-11-1980. A copy of the corrigendum was not, however, filed by either party to the Appeal; (h) in adjudication, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be paid; (i) in Appeal against the aforesaid order, however, the Appellate Collector held that :- (i) the Asstt. Collector should not have ignored the overwhelming expert opinion to the effect that the headlight glass covers, in question, indeed, have optical properties; (ii) in the classification of diverse products and articles, resort should not be to the scientific and technical meanings of the terms and expressions used but to their popular meaning [Reliance on AIR 1981 SC 1079=1981 E.L.T. 325 (S.C.) - M/s. Indo-Intentional Industries v. Commissioner of Sales Tax Uttar Pradesh]; (iii) in 1982 E.L.T. 237 [Swadeshi Mills Co. v. Union of India - it is not Swadeshi Mills but Maharashtra Glass Works that was the Appellant], glass wind screens for motor vehicles were held to be classifiable not as glass or glassware but as motor vehicles parts under Item 34A of the First Schedule as it then read. Wind screens are sold only by those who deal in motor vehicle parts and not by those who deal in glass and glassware. Following the ratio of the aforesaid ruling, the headlight glass covers would rightly fall under Item 68 because they are not sold by persons dealing in glas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ISI No. 1400 1961. Admittedly, the goods in question do not have all the properties certified in the ISI specifications for optical glasses. Consequently, the goods do not come within item 68 of the First Schedule and are correctly classifiable in glass and glassware, falling under item 23A(4) of the First Schedule; (e) in accordance with Trade Notice No. 33/82, dated 10-2-1982, headlight covers would fall for classification under item 23A(4) of the First Schedule. The Respondent, despite notice issued on 10-2-1982 to file revised classification under Rule 173B of the Central Excise Rules for classification and assessment in terms of item 23A(4), failed to do so. Accordingly, the Respondent had contravened the provisions of Rule 173B of the Rules with an intent to evade payment of duty and in terms of Section 11A of the Act, the period for collection of duty not paid would be accordingly, 5 years. The demand is thus not barred by limitation; (f) in any view of the matter, there is no question of limitation since admittedly, the approval of the classification and assessment on that basis was provisional. Shri Tayal had relied upon a decision in 1980 E.L.T. 249 (Garwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iption glass or glassware . Thus, it was held in the aforesaid Supreme Court case that, although glassware generally comprehends all articles made of glass, clinical syringes, for example, cannot, in commercial parlance, be considered as glassware ; (d) nor is it proper to import the concept of optical properties (meaning thereby the special requirements of optical glass) into the consideration of the question of classification under Item 23A(4). Optical properties of glass cannot be confused with the specifications prescribed for optical glass. It is not necessary that article of glass should have any or all the properties or requirements of optical glass so as to fall outside Item 23A(4); (e) again, no article of glass is without the common optical properties like reflection and retraction, as the case may be. The existence or otherwise of optical properties, as distinguished from the exact specifications required for optical glass, is no criterion for inclusion in or exclusion out of item 23A(4); (f) indisputably, such of the optical properties that are necessary for the production of a concentrated beam of light do exist in the headlight covers in question. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry is 23A(4) and not 34A of the First Schedule; (k) a perusal of the aforesaid decision in 1982 E.L.T. 237 would reveal that- (i) it was one of the contentions for the Revenue that wind screens must be deemed to have been excluded from Item 34A in view of Item 23A(4); (ii) this argument was rejected since, as observed in the judgment, it cannot be said that Item 23A(4) specifically provided for wind screens; (l) we cannot find any support in the said decision for the contention of the Revenue before us; (m) nor does reliance on 1980 E.L.T. 249 etc. help the Appellant. All that has been stated in the said decision was that Item 68 of the First Schedule is rather too wide in its ambit and residuary in character and, in the context of technological advances, can hardly subserve the purpose of earning the revenue. This may be so but the decision itself is an authority for the proposition that it is essential to classify the goods according to the general and commercial usage and known denominations of the various goods. In accordance with trade usage and denomination, we find that headlight covers cannot be described as glass or glassware . 8. In the view we h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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