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TMI Blog1983 (12) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... atform trucks within the meaning of the said item No. 34B and accordingly exigible to excise duty. 4. Being aggrieved by the aforesaid the petitioner preferred an appeal from the said order dated 24th September, 1971, before the Collector of Central Excise, Calcutta, respondent No. 2. 5. By an order dated 29th January, 1974, the Appellate Collector, Central Excise, Calcutta, allowed the appeal and recorded as follows : "I have considered the case carefully and I find that the Assistant Collector himself has stated that the subject goods are other than forklift trucks and platform trucks. This is exactly so as given in the tariff. I, there-fore, do not find any justification for classifying the subject goods as excisable under item 34B. The appeal is, therefore, admitted with consequential relief." 6. On the application of the petitioner a consequential order for refund of Rs. 5,11,555.95 was passed by the Assistant Collector of Central Excise in favour of the petitioner on 8th May, 1974. 7. Thereafter, on 13th January, 1975, a notice under section 36(2) of the said Act was issued to the petitioner by the Joint-Secretary, Government of India, Ministry of Finance, respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73. 10. Being aggrieved by the aforesaid, the petitioner moved the present application under article 226 of the Constitution on 29th September, 1975, where a rule nisi was issued calling upon the respondents, namely, the Assistant Collector of Central Excise, Calcutta VII Division, the Collector of Central Excise, Calcutta and Orissa, the Joint Secretary to the Government of India, Central Excise, Ministry of Finance, Department of Revenue and Insurance, and the Union of India to show cause why appropriate writs should not be issued directing them, inter alia, not to give further effect to the said impugned orders and demand respectively dated 24th September, 1971; 19th May, 1975; and 21st July, 1975, and also for quashing the same. 11. In the petition it is contended, inter alia, that the said Act does not define, either a forklift truck or a platform truck. Item 34B of the First Schedule to the Act provides that duty would be payable only on forklift trucks and platform trucks but not on other types of works trucks. It was not the intention of the legislature to impose duty under the said item on other types of works trucks apart from forklift trucks and platform trucks. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of facts, namely, the nature of the dutiable articles and their use and the authority empowered to determine the same under the statute has finally done so. This Court is not the forum for the remedy claimed by the petitioner. 20. One Jagadish Raj Bammi, a Director of the petitioner, has affirmed in an affidavit on 22nd September, 1983 which has been filed in reply to the aforesaid affidavit of Panchanan Barman. It is, inter alia, alleged in this affidavit that a reach truck as such does not come under the said item 34B. The Assistant Collector wrongly classified works trucks other than forklift and platform trucks under the said item: 21. It is alleged that reach trucks are completely different from forklift trucks both functionally and constructionally. A reach truck no doubt has certain features common 'with forklift trucks and both are used for handling goods. But commercially and technically they were different articles. Particulars of the differences between the two have been stated in this affidavit. 22. At the hearing, Mr. Pronob Pal, the learned Advocate for the petitioner, contended that under item 34B of the First Schedule to the said Act only platform trucks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy was whether polyester chips of textiles,-when manufactured, was assessable to excise duty under item 15A of the First Schedule to the said Act. The said item reads as follows : Item No. Description of goods Rate of duty 15A Artificial or synthetic resins and plastic materials in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders, the following, namely : Twenty per cent ad valorem. In construing the said item a Division Bench of the Bombay High Court held that the words which followed the expression "the following, namely" in the said item restricted the scope of the general descriptive words of the said item. It was held further that the effect of the expression "the following, namely" after the description of an item was that in order that a particular word should fall within the said item the same should not only fall under the general descriptive words-but also under the specific enumeration of the named articles following. The learned Advocate for the respondents, in support of two contentions, cited a judgment of the Punjab and Haryana High Court dated the 25th May, 1981, passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vating carriage bearing the load engaging device is mounted. The load engaging device is generally a pair of forks but this can be replaced with other attachments to suit the type of load. This truck may be pedestrian controlled or rider controlled." 30. In the same glossary a reach truck has also been described as follows : "2.2.5. Reach Truck-A high-lift truck for use in narrow aisles, which has , forward mounted load wheels and load engaging device arranged to move horizontally along the line of travel within the wheel base so as to reach out (or extend forward) for picking up or depositing the load and reach in (or retract) to the carrying position where centre of gravity of the load is within the wheel base. The load engaging device is generally a pair of forks but this can be replaced with other attachments to suit the type of load. The truck may be reaching mast type wherein the mast and the load engaging device are arranged to move together or reaching carriage type wherein the mast remains stationary and the load engaging device is arranged to move." 31. On a consideration of the aforesaid it appears to me that a forklift truck is a special type of works truck which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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