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TMI Blog1986 (7) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... this product is manufactured is known as "Hot Rolling". The manufacture is by using six rolling stands of six passes. Rollers of the first four stands have oval types of groves between the pair of rolls in contact forming the passes, through which the material is not rolled gradually and successively, changing the size and shape of the cross section and length. In relation to the oval groove section, the same is much reduced at the fourth pass vis-a-vis that at the first pass. At the fifth and sixth stands of the rollers, the whole section is rolled through the plain barrel which is horizontal. There is no facility for the cooling of the product or the shearing of the edges at the end of the rolling process. No vertical plain rolls are fitted to the mills at any of the six stands mentioned above. The products aforementioned was described as falling under Tariff Item No. 26AA, sub-item (ii) and/or (iii). Classification lists were also filed by petitioners to this effect, as required by Rule 173B of the Central Excise Rules, 1944 -hereinafter referred to as the "Rules". In the classification list, the product which was actually a "flat bar" was described as a "Balling Hoop and Strip" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise & Customs, Aurangabad. This Officer, viz., Mr. D.M. Patil, considered the data and the submissions advanced before him at length and his verdict dated 4-11-1980 is at Exhibit-K. The learned Officer took into consideration the various test reports, which had a bearing on the subject and also considered different types of mills spoken of in the Central Excise Tariffs. He had also visited the petitioners' factory and witnessed the manufacturing process. His view can be best quoted in his own words from the relevant paragraphs :- "I have come to the conclusion that the product dealt with in these proceedings i.e. the thickness of which is less than 3 mm and width less than 75 mm is not having rectangular cross section and which is hot rolled through the rolls which have oval grooves in first four passes and then rolled through two plane rolled passes, there is no provision of the facility of coiling the product, and it is produced in irregular shape, size and thickness, is not classifiable under Tariff Item 26AA(ii) as bailing hoops, which has been defined precisely and definitely without any condition of consideration to its understanding in Trade Parlance, ............ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a writ to quash Exhibit-K and another writ to restrain the respondents from levying excise on their product in contravention of the verdict of Messers Asthana and Patil. 4. The respondents have filed an affidavit in reply. It is contended that petitioners had submitted a classification list alongwith their letter dated 11-8-1978. In this list, the product was described as "Bailing Hoops" and petitioners cannot go back on the said description. It is further contended that the classification lists issued year-after-year amounted to an admission, which cannot be retracted by the petitioners. As to Mr. Ashtana's verdict, the stand taken in paragraph 5 of the reply, reads thus :- "......I say that unless and until the decision of the Appellate Collector, New Delhi, is carefully perused to find out whether the petitioners before the Appellate Collector, New Delhi, had anywhere admitted the approval made by the Excise Officer. That judgment will not be binding on the Excise Department at Aurangabad......" I take it that these words imply only a careful consideration of the judgment of the Appellate Collector in order to find out whether it would be binding upon the Excise Officers at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector's barely concealed opinion is made clear in the affidavit in reply. This, therefore, is one case where the existence of an alternative remedy - statutory or otherwise - would be a poor consolation to the affected persons. Besides, the very attempt to reopen the issue is illegal, as will be shown hereinafter. The preliminary Objection is, therefore, overruled. 6. Now taken up for consideration is the petitioners' contentions vis-a-vis Exhibit-M. Briefly, the argument is that having regard to the verdict of Mr. Ashtana, if was not open to the Assistant Collector to issue a show cause notice. If he was purported to exercise the power of revision conferred under Section 35A of the Act, he could do so only in compliance with sub-section (3)(b) thereof. In other words, the power had to be exercised within six months. As a matter of fact, Mr. Ashtana's verdict had not been impugned at all. Even in relation to Mr. Patil's verdict, the show cause notice, not having been issued within six months of the said verdict delivered on 4-11-1980, was bad in law. 7. On merits, the product had been rightly classified as falling under Item No. (ia). The attempt to change the classification to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Engineering at Pune certifies that the width at the edges were rounded and that there was no uniformity in the width and thickness of the three samples. It is only the report of the National Test House, Alipur, which says that :- "the cross section at each and under microscope appeared to be rectangular against individual samples....each sample meets the requirements of I.S. Specification No. 1029-1970 (with amendments). Now the important point to bear in mind is the use of the expression "appeared". A copy of this report was not furnished to the petit and, therefore, they had no opportunity to counter the observations appearing therein. Examination of a stray sample, and, where the date which led to the conclusions is unknown, cannot prevail over the verdicts of the other three Institutions. Moreover, there is no dispute in relation to the manufacturing process. In the very pleadings there is an admission that the product manufactured is uneven in shape, size, thickness, etc. The product that rolls out is not uniform in any sense. It varies from piece to piece. There is no coiling and no shearing of the edges. All these facts fortifies the reports which go in favour of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Ashtana was confined to a consideration as to whether the product was a "flat" or a "bar". His submission is that this verdict will not have any bearing vis-a-vis the enquiry proposed to be carried out as contemplated by the impugned notice. The notice indicates the tentative view of the Collector that the product is a "bailing hoop". Now, in the dispute which Mr. Ashtana resolved, the product figuring is the same, as that proposed to be considered by the Collector, who issued the notice at Exhibit-M. That description or what label was attached to it by Mr. Ashtana and by the Collector now, would hardly make any difference. That it would have been considered as a "bailing hoop", and was not so considered, would not permit a fresh appraisal. As said earlier, there has been no change in the wording or the entries of the statutes, the rule or the relevant tariff items. A judgment or verdict given by a competent authority is binding, whether it be wrong, right or incomplete. Therefore, this answer to escape the effects of Mr. Ashtana's verdict cannot be of any help to the respondents. Can it be said that the events, which took place after the verdict of Mr. Ashtana, changed the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on founded upon Mr. Ashtana's verdict. In relation to Mr. Patil's verdict, he relies upon Section 35A(4) reproduced above. This submission of learned Counsel cannot be accepted, and, in this connection we can do no better than refer to the Division Bench judgment reported in 1984 (16) E.L.T. 1977 (Bombay). Chief Justice Chandurkar speaking for the Bench had this to say on a contention similar to that raised by Mr. Godhamgaonkar before us :- "According to Mr. Sethna and Mr. Deodhar, the third proviso is not attracted to a case where the order sought to be revised is one made under Section 35 by the Collector of Customs and the third proviso to Section 36(2) provides for cases which do not fall within the scope of Section 35 or 35A. It is, therefore, contended that since the order sought to be revised was the Appellate order of the Collector of Customs, the proceedings will squarely fall within the second proviso to Section 36(2) and since the proceedings have been commenced within the period of one year as required by the second proviso, there is no infirmity in the proceedings. Now, we have already pointed out that the third proviso to Section 36(2) is worded similar to clause (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the construction sought to be placed by department would be that either the Board or the Collector or the Central Government could issue show cause notice against such orders. Vesting of parallel jurisdiction in respect of the same subject-matter could not have been intended by the legislature at all. We must, therefore, construe the third proviso to Section 35(A) of the same line as clause (b) of sub-section (3) of Section 35A............ It must be held that the third proviso has been effect of restricting the revisional jurisdiction of the Central. Government in matters which arise out of the orders under Section 35 and 35A relating to non-levy, short-levy or erroneous refund. This restriction is in the form of an express provision that the notice to show cause in respect of these matters must be given within the time limit specified in Section 11A, that is, within a period of six months......." (emphasis given) In the instant case, according to the show cause notice itself, there had been a non levy. The product manufactured by the petitioners fell under Tariff Item No. (ii). It had been earlier treated as falling under Tariff Item No. (ia). For that reason, there had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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