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TMI Blog1984 (11) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... and was not eligible to excise duty under item No. 33D of the First Schedule to the Act ("item No. 33D") in particular and the Act in general. On examination of the same and apparently rejecting the same, the Assistant Collector of Central Excise, Bangalore-I Division, Bangalore ("the Assistant Collector") by his Notice No. C.V./33D/17/3/71, dated 22nd April, 1974 (exhibit B), called upon the petitioner to show cause as to why the same should not be charged to duty under item No. 33D as an "intercom machine". In response to the said notice, the petitioner filed its reply on 8th May, 1974, before the Assistant Collector reiterating its earlier stand. On an examination of the show cause notice, the reply and the records, the Assistant Collector by his order dated 7th August, 1974 (Annexure D), confirmed his show cause notice and directed the petitioner to clear the manufactured equipment's on payment of duty thereon as stipulated in item No. 33D and the Act. Against the said order of the Assistant Collector, the petitioner filed an appeal in Appeal No. 51 of 1978 before the Appellate Collector of Customs and Central Excise, Madras ("the Appellate Collector") who by his order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and examine the question independently. 8. In the appeal of ITI (Annexure K) under the Act, the Board dealing with a similar equipment manufactured by that company, reversing the decision passed by the Collector of Central Excise, Bangalore, had expressed that it was not (sic) a "telephone" and was not exigible to duty under item No. 33D of the Act. In their return, the respondents have not denied this assertion of the petitioner and have not offered any explanation for ignoring or not following the same except the explanation offered by Sri Bhat at the hearing which I have noticed earlier. 9. The order of the Board in the appeal of ITI was made on 25th January, 1980. Before the authorities, the petitioner who was probably unaware of the same does not appear to have relied on the same. Under the Act, as it then stood, the order of the Board was not binding on Government though the same was binding on the Appellate Collector and the Assistant Collector, unless they held that it was distinguishable on any other ground. Whatever that be, the order of the Board is not binding on this Court. The question is not concluded by the ruling of the Supreme Court or this Court. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the oft quoted classical statement of Rowlatt, J., in Cape Brandy Syndicate v. Inland Revenue Commissioners - (1921) 1 KB 64 at page 71 approved by our Supreme Court in more than one case which reads thus, must be kept in view : "In as taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax, nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." 14. On the principles to be applied in the interpretation of dutiable items or entries occurring in the Act, the matter is concluded by several rulings of the Supreme Court. In Dunlop India Limited v. Union of India - 1983 E.L.T. 1566 (S.C.) = AIR 1977 S.C. 597 ; the Supreme Court dealing with an entry occurring in the very Act, reviewing all the earlier cases, English and American Courts, has restated the principles in these words : "31. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the trade and its popular meaning should commend itself to the authority. 32. Dealing with the meaning of the term 'veget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be included in coal, observed as follows : 'Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But, it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.' This Court again referred with approval to the decision in Planters Nut case - 1951 CLR 122 and followed the principle laid down in Ramavatar's case - (1961) 12 STC 286 (S.C.). In South Bihar Sugar Mills Limited v. Union of India (1968) 3 SCR 21 = 1978 E.L.T. (J 336) (S.C.) = AIR 1968 S.C. 922 the question that was raised related to item 14H in the First Schedule to the Central Excises and Salt Act, 1944, which contained, compressed, liquefied or solidified gases, inter alia, carbon acid (carbon dioxide). This Court observed as follows : `It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry." In Indo International Industries v. Commissioner of Sales Tax Uttar Pradesh - 1981 E.L.T. 325 (S.C.) = AIR 1981 S.C. 1079 the Court examining whether "clinical syringes" were "glassware" or not occurring in the U.P. Sales Tax Act, speaking through Tulzapurkar, J., has reiterated the principles in these words. "4. It is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (see Webster's New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in 'glassware' does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc., which articles though made of glass, are normally, available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware, such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one's mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as 'glassware' falling within entry 39 of the First Schedule to the Act." Bearing these principles it is necessary to ascertain the true scope of item No. 33D of the Act. 15. Item No. 33D of the Act reads thus : "33D. Office machines and apparatus, including typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us dictionaries as under : "(a) Intercom: Informal. 1. an intercommunication system, as of an airoplane or a military tank. 2. a microphone or receiver of an intercommunication system (shortened form). (vide : The Random House Dictionary of the English Language the unabridged, edition page 740). (b) Intercom : Intercommunication system. (vide : Webster's Third New International Dictionary unabridged page 1177). (c) Intercom : the system of intercommunication., esp., in aircraft. (vide Oxford Advanced Learner's Dictionary of Current English by A.S. Hornby at page 452). (d) Intercom : interphones, intercommunication system. (vide : Roget's International Theasurus-III Edition at page 365). (e) Intercom : intercommunication system, a system by which one can talk through a machine to people in a near place, often to several people at once, as used by someone to call a secretary to his/her office from an outer room. (vide : Longman Dictionary of Contemporary English by Chief Editor Paul Procter at page 583). (f) Intercom : The system of internal communication by telephone, wireless, etc. between units of an organisation. (vide : Dictionary of Business and Managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om House Dictionary of the English Language the unabridged edition page 1460). (b) Telephone: 1 an instrument for reproducing sounds esp. articulate speech at a distance ; as a device in which the voice or sound causes in a thin diaphragm vibrations that are directly transmitted along a wire or string connecting it to a similar diaphragm thus reproducing the sound, b : an apparatus consisting of a transmitter (as a microphone) for converting sound esp. of the human voice into electrical impulses or varying electrical current for transmission by wire, a wire, a receiver for reproducing the original sounds from such transmitted varying electrical current, and usu. a switch and a signalling device. 2. Any of various devices (as a sound signalling device or a speaking tube) resembling or suggesting the telephone, to communicate by telephone; call on the telephone-vt. 1. to send (as a message) by telephone. 2. to speak to (a person) by telephone : call on the telephone. (vide : Webster's Third New International Dictionary unabridged page - 20350) (c) Telephone: 1. An instrument, apparatus, or device for conveying sound to a distance. (vide : The Oxford English Dictionary, Volu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion data, teletypewriter, and facsimile." When one ascertains the meaning of this term with due regard to the meanings in the various dictionaries, but essentially in the context of the conditions prevailing in our country and not in other countries of the world, it is abundantly clear, that the term "telephone" means only a public telephone and does not include an "intercom" or an "intercommunication telephones" exclusively used in an office. 20. Whatever be the position in other countries like United States of America, the position in our country is that telephone is synonymous to a public telephone exclusively manufactured and supplied by the ITI to the Posts and Telegraphs Department of Government that has the exclusive privilege of establishing, maintaining and working of the same under the Indian Telegraphs Act, 1885 (Central Act 13 of 1885) and dos not mean an "intercom" at all. 21. In popular sense or in common parlance, telephone in our country is always understood as a public telephone and not as an "intercom" or an internal telephone communication system or equipment exclusively used in an office. Every one of the reasons given by me earlier in ascertaining the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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