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TMI Blog1983 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... uting the original demand for Rs. 7,09,237.84. This order is sequel to the order of Assistant Collector, dated 31st January, 1981. The short facts are as follows : 3. The petitioner company is engaged in the manufacture of cycle lamps among other things. The lamps so manufactured are supplied to cycle dealers. The cycle lamps fall under Item 68 of the First Schedule to the Central Excises and Salt Act, 1944. As required under Rule 173-B of the Central Excise Rules, the petitioner company was filing classification lists for the goods manufactured and cleared by them. The classification list filed by the petitioner was approved by the department from time to time. Since the department itself treated cycle lamps as part of the cycle, the Government of India acting under Rule 8 of the Central Excise Rules exempted cycles and parts thereof under Notification No. 55 of 1975 as amended by Notification No. 102 of 1980, dated 18-6-1980. As a result, cycle parts were not liable for payment of duty from 18-6-1980. 4. The second respondent issued a show cause notice on 24-10-1980 as follows : "M/s. T.I. Miller Limited, Ambathur, Madras-53 are holders of Central Excise Licence 37/75 for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. It was also contended that the trade considered cycle lamps as cycle parts and even consumers accepted it as a cycle part and hence a request was made to drop the demand. It was also pointed out through the letter of the Petitioner, dated 21-11-1980 that major cycle lamps manufacturers like M/s. Sankyo Ltd. were not paying duty. A personal hearing was afforded to the petitioner on 27-12-1980. Thereafter, corrigendum was issued to the show cause notice on 15-1-1980 calling upon the petitioner to show cause why the differential duty of Rs. 5,02,923.22 for the period 19th June, 1980 to 23rd October, 1980 and a further differential duty of Rs. 76,525.91 for the period from 24-4-1980 to 18-6-1980 should not be demanded under the then Rule 10 of the Central Excise Rules. By this order, dated 31st January, 1981, the second respondent Assistant Collector confirmed his view taken in the show cause notice and held cycle parts are not eligible for exemption under Notification No. 86 of 1979, dated 1-3-1979 and Notification No. 55/75 as amended by Notification No. 102/80, dated 18-6-1980. In the result, he confirmed the demand for Rs. 7,09,237-84 and subsequently by his corrigendum to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. That is the ratio of Advani Oerlikon Ltd. and another v. Union of India and others (1981 E.L.T. 432). The same principle was laid down in Commissioner Sales Tax, U.P. v. S.N. Brothers (A.I.R. 1973 S.C. 78), Dunlop India Ltd. v. Union of India (A.I.R. 1977 S.C. 597) = 1983 E.L.T. 1566 (S.C.) and Union of India v. G.W.F. Mills (A.I.R. 1977 S.C. 1548). 6. The next submission of the learned counsel is that this being a fiscal statute it must be construed in favour of the assessee and not in favour of the Revenue. The Central India Spinning and Manufacturing Co. Ltd. v. The Municipal Committee, Wardha, A.L.T.P. Fernandes v. M.F. Queoros (A.I.R. 1963 Allahabad 153). 7. It cannot be contended that the writ petition is against the order of the Assistant Collector and that further remedy by way of appeal is available under the Act and therefore, the writ jurisdiction cannot be invoked, because this Court has already taken the view that where it is a matter of classification and should the classification be perverse, it can be interfered with under Article 226 of the Constitution of India. In support of this submission, reliance is placed on the decisions reported in 1979 E.L.T. (J36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teries were part of the transistor was the question. The court held that it may be necessary for the convenient use, but it cannot be held to be a part of transistor. Such view prevailed even with the Mysore High Court as seen from the rulings in N.A.V. Naidu v. State (A.I.R. 1971 Mysore 16). Therefore, if the popular and commercial leaning are to be attached to this item, it would become an excisable commodity under Item 68 of Schedule I. The various rulings cited contain the general proposition and they have no relevance. 10. The next submission of the learned counsel is that in so far as the show cause notice has fruitioned into an order, which order is liable to be appealed against and a further appeal is also provided to the Tribunal now after the amendment, there is no reason why this court should exercise writ jurisdiction under Article 226 of the Constitution. 11. It is incorrect to contend that the then Rule 10 would not apply to a case of this character. Originally, accepting the c7lassification the exemption was granted. That notification was not for all time to come. It is well open to the excise department to revise its stand. Under those circumstances, Rule 10 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commercial sense. Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957." That case dealt with the question whether typewriter ribbon was a part of typewriter itself and the answer was as found in the above extract. Incidentally, it requires to be noticed that the ruling of the Supreme Court approved the view of the Mysore High Court taken in State of Mysore v. Kores (India) Ltd. (1970 26 S.T.C. 87), at page 88 of the latter ruling, the court observed, as extracted in the Supreme Court ruling and referred to above. In Deputy Commissioner v. Union Carbide India Ltd. (38 S.T.C. 198), the Kerala High Court was confronted with the question whether leak-proof or dry cell batteries which are labelled as transistor batteries can be regarded as normally used only for transistors. The headnote itself sets out the point in issue. The learned Judges after referring to some of the leading decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropounded by the Supreme Court is determinative, I need not labour by referring to various other decisions. It should also be noted that there is no technical meaning here so as to bring this case within the ratio of the rulings reported in Advani Oerlikon Ltd. and Another v. Union of India and Others (1981 E.L.T. 432) Sales Tax Commissioner, U.P. v. S.N. Bros. (A.I.R. 1973 S.C. 78) Dunlop India Ltd. v. Union of India (A.I.R. 1977 S.C. 597) and Union of India v. G.W.F. Mills (A.I.R. 1977 S.C. 1548). It is the axiomatic construction of law that in interpretation of fiscal statutes the court must lean in favour of the citizen rather than revenue because it is expropriatory in character (A.I.R. 1958 S.C. 341). - The Central India Spinning Manufacturing Co. Ltd. v. The Municipal Committee. But in this case in so far as the construction is possible in that the cycle can be used without the dynamo, it is not a part of the bicycle. The mere fact that under the Madras Traffic Code, Rule 43 requires the rider of a bicycle to have a light while riding a bicycle during night cannot be of any assistance in relation to classification. 14. It is the common case between the parties that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf is bad. The defect in the show cause notice is sought to be got over by the respondents by saying it has fruitioned into an assessment. If I am right in my conclusion that during the currency of exemption there cannot be an assessment at all, the order of Assistant Collector and the corrigendum issued to that order cannot have any legal basis. As a matter of fact, I called upon the revenue whether it is willing to withdraw the show cause notice and assess afresh. For the reasons best known to the revenue, this suggestion of mine was not accepted. Of course, this is besides the point. But the most important thing which cannot be lost sight of which I say at the risk of repetition is, the exemption is there very much. It is not shown as to why it is sought to be withdrawn or how the original exemption was wrong, so that it could have been withdrawn in an appropriate and legal manner. That has not been done. It is this defect which looms large and perverses both the show cause notice as well as the order. In view of this, I hold that impugned order is bad which is hereby quashed of course with liberty afforded to the respondent to proceed afresh if it is permissible in law. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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