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TMI Blog1987 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby the Government exempted articles made of plastic, all sorts, falling under sub-item (2) of Item 15A of the first Schedule to the said Act, (except rigid plastic boards, sheeting sheets and films, whether laminated or not....). 2. The petitioners sought the benefit of this exemption notification. However, the department would not agree. Finally the petitioners had to file a writ petition in this Court being Misc. Petition No. 1005 of 1974. That petition came to be decided by Bharucha, J., by his order dated February 7/8, 1979 whereby he made the petition absolute and held that the petitioners were entitled to the benefit of the exemption notification inasmuch as the goods manufactured by them were not "rigid". 3. During the pendenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han "flexible" articles as defined in clause (i)." 4. By a trade notice they explained the notification as follows : "(i) Notification No. 198/78-C.E. : An explanation has been inserted at the end of Notification No. 68/71-C.E., dated 29-5-1971 and No. 39/73-C.E., dated 1-3-1978, which lays down norms for determining the "flexible" and "rigid" articles made of plastics falling under T.I. 15A(2) of C.E.T." 5. The effect of this is that what was held to be not "rigid" would become "rigid" by virtue of this definition or norm introduced by the Government. It is this notification which is under challenge in the present petition. 6. Mr. Rana, appearing for the petitioners, pointed out that it is not open to the Government to provide any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e itself defines in any other manner. 8. Mr. Rana also drew my attention to another case of Bata India Ltd. v. Assistant Collector, C.E., Patna, reported in 1978 E.L.T. (J 211). The legal position has been stated at 2 or 3 places in this judgment but I think I would quote the following passage at page 224 which is as follows : "Under sub-rule (1) of Rule 8 of the Rules, the Central Government has been authorised to exempt, on such conditions as may be specified in the notification, any excisable goods from the whole or part of the duty leviable on such goods by a notification in the Official Gazette. A plain reading of this provision, which has been quoted in the judgment of the learned Chief Justice, it is manifest that the power given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation appended to the impugned notification was merely a condition as contemplated under Rule 8(1) imposed by the Central Government for exemption of certain footwears from the duty leviable on such goods, cannot in view of what I have stated above, be accepted." I understand that this judgment of Patna High Court was accepted by Pendse, J., in the case of Carona Sahu Co. Ltd. v. Supdt., Central Excise and others, reported in 1981 E.L.T. 730 (Bom.) and the same legal position has been reiterated. 9. Mr. Vyas, appearing for the respondents, submitted that the Government sought to explain as to what is meant by "rigid" and as to what is meant by "flexible" in the absence of any explanation for the manufacturers enabling them to ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion notification. If there has to be any exemption, or classification that necessarily must be done by the legislature and not by virtue of any power to issue exemption notification under Rule 8(1) or (2) of the Central Excise Rules. 12. Mr. Vyas submits that explanation as provided for, was within the scope of Tariff Items itself and that no further classification was done at all. I am not inclined to accept this submission of Mr. Vyas. The words have not been defined in the Tariff Item. Therefore, Mr. Justice Bharucha had to construe those terms according to its popular meaning or as understood commercially. 13. In the result, the petitioners succeed. I, therefore, pass the following order : Rule is made absolute in terms of prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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