9911796707
TMI Blog1981 (2) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. This classification list was filed by the Company on 1st October, 1971 and was approved by the Superintendent, Central Excise, namely, the 2nd respondent, on 8th October, 1971. Similar classification lists were filed by the Company from year to year and were approved by the Superintendent. On 23rd January, 1973, a tariff advice was issued by the Central Board of Excise and Customs, that `'Submerged Arc Welding Wires are liable to excise duty as "Welding Electrodes" under Tariff Item No. 50. On 2nd February, 1973, without notice to the Company, an exparte order was passed by the Superintendent classifying the Company's C.C.M.S. Wires as liable to excise duty under Item 50. By this order, the Superintendent stated that he had considered that - "....the `Mild Steel Copper Coated Wire' and `Copper Coated mild steel wire cuts' are Welding Electrodes. For some time past I have observed the performance of these wires and cuts in some of the Bombay factories where welding operations are predominant. This operation is termed as `Submerged Arc Welding', and copper coated mild steel wires and cuts used in this operation are nothing but welding electrodes...." By this order, the Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sified as welding electrodes so as to attract excise duty under Tariff Item 50 The Company's case has throughout been that its C.C.M.S. Wires could not be electrodes at all as the latter can be used only by conducting electricity whereas the C.C.M.S. Wires are not so used. 6. From the order passed by the Superintendent it is clear that he has relied on his personal observations in factories in Bombay and to the end use of C...C.M.S. Wires or cuts. The appellate order discloses reliance on the end use of the product, reference to technical books and dictionary meaning. The revisional order discloses its reliance on the end use of the product. It is on such considerations that the Superintendent, the Appellate Collector and the Revisional Authority held that the Company's product, viz. C.C.M.S. Wires, was attracted ro excise duty under Tariff Item 50. However, what these authorities have palpably overlooked is that these considerations on which they have passed their impugned orders are the very considerations which the Supreme Court has repeatedly deprecated being taken into account to ascertain whether a particular commodity is attracted to excise duty or not. To illustrate in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne.) Pausing here for a moment, it may be observed that Tariff Item 50 makes no reference to the end-use in contra-distinction to certain other Items, to wit, Items 51 and 54, where the end-use of the articles covered by these Items is mentioned. This is another indication as to the irrelevancy of considering the end-use of the Company's product as done by the Superintendent and by the appellate authority. Reliance by the authority on dictionary meanings have been deplored by the Supreme Court in Sales Tax Commissioner, U.P. v. S.N. Brothers, A.I.R. 1973 S.C. 78, where it was observed as under :- "In our opinion the Random House Dictionary cannot serve as a safe guide in construing the words used in the List in the notification in question for the purpose of deciding whether or not the words used in entries nos. 10 and 37 cover food colours and syrup essences; indeed this Dictionary is apt to be a somewhat delusive guide in understanding the meanings of the words and expressions with which we are concerned in the context in which they are used. This Dictionary gives all the different shades of meanings attributable to the words referred but that is hardly helpful in solving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board. No authority however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others...." 8. All these principles repeatedly laid down by the highest Court in the country have pointedly been ignored by the authorities in this case in holding willy-nilly that the Company's product is assessable to excise duty under Tariff Item 50. 9. Coming to the burden of proof, the case of the Company throughout has been that its C.C.M.S. Wires are not popularly understood in the trade as electrodes. If it was the Department's case to the contrary, which it was, surel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish that the said four varieties were liable to pay excise duty as the same were manufactured after mid-night of 28th February, 1961...." (The underlining is mine.) With these observations, I am in respectful agreement. 10. The Company has, in the petition, filed an affidavit of one Mohammed Iqbal, Administrative Officer of M/s. Industrial Distributors, Bombay, engaged in the distribution of welding electrodes since the past several years. He has stated that whenever a customer asks for welding electrodes he is not supplied with copper coated mild steel wires, that welding electrodes are invariably coated with flux and that welding electrodes known in commercial parlance are only those electrodes which are used by electricity; whenever a customer buys copper coated mild steel wire s or wire cuts, he asks in terms for wire cuts and wires and never for welding electrodes. On behalf of the respondents, exception was taken to this affidavit on two grounds. Firstly that the deponent has used the word "invariably" without stating that welding electrodes are always coated with flux. This is a mere play on words. "Invariably" is what is not "variable" or "changeable" and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at its findings the concerned authorities proceeded on extraneous consideration frowned upon and expressly prohibited by the Supreme Court as stated earlier in this judgment. It need hardly be emphasised that where an authority consistently and persistently violates or does not choose to follow principles laid down by the highest Court in this country, it would certainly be a matter for interference in exercise of writ jurisdiction. 12. Mr. Mehta next urged that where the legislature uses technical language or words then the technical meaning must be taken unless there is an obvious intention to the contrary. Now, what is the-technical language used in Tariff Item 50. As I see it, there is nothing technical in the phraseology "Welding Electrodes". It is common knowledge and judicial notice can certainly be taken that the very concept of electrodes connotes the user of electricity which the user of C.C.M.S. Wires or cuts does not. Mr. Mehta invited my attention to Item 50 which says ``Welding Electrodes, all sorts." Emphasising the last two words, Mr. Mehta urged that no distinction was made between gas welding wires and welding electrodes (with or without flux). He urged that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mehta. lt is futile to say that the books relied on by the Department are mere standard text-books. They are not any the less what they actually are, namely, highly technical books containing a wealth of technical information meant for technical people. It is reliance on such material by authorities that has consistently been frowned upon and condemned by the Supreme Court. 14. Mr. Mehta adverted to the Dictionary meaning of "weld", meaning "to `units' or `fuse' as piece of metal by hammering, compressing after reducing to soft or pasty by heat and sometimes with addition of fusible material like or unlike the pieces to be united." Relying on this dictionary meaning, Mr. Mehta urged that flux coating is not the criterion to determine whether C.C.M.S. Wires are welding electrodes or not. By relying on dictionary meanings, Mr. Mehta fells into the same error which the authorities fell into and which in turn, he invites me to do. I must decline to succumb to the temptation that Mr. Mehta lays before me. 15. In conclusion, I may state that one ground of challenge, namely that the show cause notice could not be issued under Rule 10A of the Central Excises and Salt Act, was not urg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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