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TMI Blog1991 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay excise duty as per Tariff Heading 85.06. It is the contention of the petitioners that plastic battery tops are not part of the primary cells or in any set of circumstances, with regard to parts of the battery, there is no separate Tariff Heading which provides levy of duty of excise on parts of primary cells or batteries. 3. For determining the aforesaid controversy it would be necessary to reproduce Tariff Item 42 which was in force prior to 1986. It reads as under : "Item number 42 - PILFER PROOF CAPS Item No. Tariff Description Rate of duty 42 Pilfer proof caps for packaging, all sorts, with or without washers or other fittings of cork, rubber, Polyethylene or any other material. Two paise each "Heading No Sub-heading No. Description of Goods Rate of duty XXX XXX XXX XXX 85.06 8506.00 Primary cells and primary batteries 35% xxx xxx xxx xxx 4. In the affidavit in reply, it is stated that the petitioners' product plastic battery tops or cap seals are used to protect the leakage of electrolyte from within the ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents and no appeal is filed against that judgment. It is required to be noted that M/s. Top-O-Plast, Baroda, has filed Special Civil Application No. 7247 of 1988. 7. Admittedly, plastic battery tops are made not to prevent any pilferage, adulteration or substitution. Its purpose, as contended by the respondents, is to protect the leakage of electrolyte from within the cell, to protect positive terminal from corrosion and to avoid short circuit of the cell during transportation and display on shelf and, therefore, it cannot be said that the plastic battery tops manufactured by the petitioners would fall within the Tariff Item 42. As plastic battery tops are not meant for protection against pilferage, it would be difficult to hold that it can be termed as pilfer proof caps. It is not the case of the respondents that the contents of the cells or batteries can be pilfered by anyone and to protect such type of pilferage, pilfer proof caps are used by the producers of cells or batteries. As per the definition to the phrase 'Pilfer Proof Caps' or 'Closure', stated above, it is apparent that it is meant to prevent pilferage or to protect against substitution or adulteration. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solely or principally with a particular kind of machine or with a number of machines of the same heading, are to be classified with the. machines of that kind; and (c) all other parts are to be classified under Heading 84.85 or Heading 85.48. Admittedly, clause (a) is not applicable because Heading of Chapter 84 or 85 nowhere provides for "Plastic Battery Tops". It is not the contention of the respondents that it is covered by clause (c). However, the learned advocate for the respondents submitted that it can be covered by clause (b) of Note 2 as it can be termed as parts of the machine. In our view, this is truncated reading of clause (b) of Note 2. Note 2 only provides that other parts of the machine if suitable for use solely or principally with a particular kind of machine or with a number of machines of the same heading are to be classified with that machine. As stated earlier, battery tops or seals are not parts of any machine. For the time being even if we assume that primary cell or battery can be said to be part of the machine, still, however, the aforesaid clause (b) nowhere provides that parts of part of the machine are to be classified with that machine. If this content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te for the petitioners contended that these plastic battery tops are not necessary for proper functioning of the battery or cell; cell or battery can function without the plastic tops. He contended that some portion of plastic top is required to be removed for operating cell or battery. As against this Mr. Rawal, learned counsel for the respondents, submitted that the plastic tops prevent the leakage of power and, therefore, it would be part of the cell or battery. 12. Now, we would deal with the facts of each matter. 13. In Special Civil Application No. 5313 of 1984 the petitioners inter alia prayed that directions issued by the respondents by the letter dated 22nd August 1984 and 12th October 1984, directing the petitioners to apply for licence on the basis that the petitioners' product falls within the Tariff Item 42 and not under Tariff Item 68, be quashed and set aside. It is further prayed that it be declared that the petitioners' product, plastic battery tops, is covered under Tariff Item 68 of the Schedule. At this stage it be noted that by an interim order this Court has permitted the respondents to make provisional assessment on the basis of adjudication. The said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers dated 12th October 1984 and 28th July 1984 and 25th August 1984 are quashed and set aside. Accordingly this petition is allowed. Rule made absolute with no order as to costs. 15. In Special Civil Application No. 7247 of 1988 the petitioners have challenged the show cause notice dated 28th August 1986 and consequential orders passed by the Assistant Collector of Central Excise, Vadodara whereby it is held that the petitioners' product plastic top/cap is not a component of dry battery cell but the said product is suitable for use solely and principally with the battery cell. The aforesaid order is confirmed in appeal by the Collector, Central Excise, by order dated 2nd February 1989 which is produced at Annexure-D to the petition, on the same grounds. As we have arrived at the conclusion that the petitioners' product cannot be said to be battery cell, or primary battery and also cannot be considered to be 'machine' as contended by the learned counsel for the respondents, the aforesaid orders are required to be quashed and set aside. Accordingly this petition is allowed and the impugned orders at Annexure-C and D are quashed and set aside. Rule made absolute with no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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