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TMI Blog2008 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... Adopted Pipes, Cap pieces, socket and pipes, spigot pipes etc. They have entered into a contract with TWAD Board for supply of MS pipes and supplies of various sizes as for the water supply schemes at Pudukottai, Madurai and Coimbatore. The writ petitioner has classified the M.S. Bend pipes and other M.S. pipes under Chapter Sub-heading 7305.90 of the Central Excise Tariff Act and availed the concessional rate of duty under Notification No.175/88, dated 13-5-1988, as amended by notification No. 66/89, 63/91, 33/92 and 43/93, for effecting clearances at the rate of 12.5%. Though initially, the third respondent had approved such classification, subsequently show-cause notices were issued for the period from November 1992 to May 1994, to the writ petitioner/company as to why their products M.S. Bends, Cap Pieces, Specials etc. should not be classified under Chapter Heading 7307 of the Central Excise Tariff Act, attracting the Central Excise Duty at 15%, as their products are utilised for connecting PSC/MS/CI/AC pipes to make positive water tight joints and are actually pre-fittings as evidenced in the contract between the first respondent company and the TWAD Board, wherein the requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, the writ petitioner has initiated the present writ petition seeking 'judicial review' of the order, which is impermissible and on this sole ground, the writ petition should have been dismissed by the learned single Judge. On the contrary, the learned senior counsel for the respondent/company would rely on the Constitutional Bench judgment of the Honourable Apex Court in L. Chandrakumar v. Union of India and Others [AIR 1997 SC 1125] wherein the Honourable Apex Court has held in para No. 92 that: "we may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution. In view of our above mentioned observations, this situation will also stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution, but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court, the aggrieved party could move this Court under Article 136 of the Constitution." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Revenue. Thus, the issue to be decided in the case on hand is as to whether the goods in question fall within the classification of sub-heading 73.05 or 73.07 of the Central Excise Tariff Act, 1985. For better appreciation of the facts and circumstances of the case, we extract hereunder both the headings 73.05 and 73.07 of the Central Excise Tariff Act, 1985: Heading No. Sub-heading No. Description of goods Rate of duty (1) (2) (3) (4) 73.05 Other, tubes and pipes (for example, welded, riveted or similarly closed), having circular cross-sections, the external diameter of which exceeds 406.4 mm. of iron or steel 7305.10 - Of iron 16% 7305.90 - Other 16% 73.07 7307.00 Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel 16% 9. While on the part of the Revenue, they claim that the goods in question are tube or pipe fittings, being the couplings etc. and thus falling under sub-heading 7307.00, on the part of the writ petitioner/Company, they would subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or supplying 'welded mild steel fittings and specials of various sizes' and the goods are utilised for connecting pipes to make positive water tight joints and thus, it is understood that they are serving as only pipe fittings like couplings, elbows, sleeves and as such they fall specifically within the ambit of sub-heading 73.07. 14. At this juncture, it is apt to quote judgment of the Honourable Apex Court in CCE v. Bakelite Hylam Limited [1997 (91) E.L.T. 13], wherein it has been held that for resolving any dispute relating to the Central Excise tariff, 'the HSN nomenclature and explanatory notes is a safe guide for its interpretation'. The same views was expressed by the Honourable Apex Court in O.K. Olay (India) Ltd. v. CCE, Delhi-III [(2005) 2 SCC 460)]. Therefore, for a better understanding of the sub-heading 73.07, we extract hereunder the explanatory notes for HSN for 73.07, which reads as follows: "This heading covers fittings of iron or steel, mainly used for connecting the bores of two tubes together, or for connecting a tube to some other apparatus, or for closing the tube aperture. This heading does not however cover articles used for installing pipes an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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