9911796707
TMI Blog1985 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... setting aside the Tariff Advices No. 48/79 and 120/81 at Annexure P collectively; (B) Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside the notices to show cause dated 19-6-1981 and 20-6-1981 passed by the third respondent at Annexure B collectively, as well as the order passed by the fourth respondent at Annexure J collectively; (C) Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of declaration or a writ in the nature of declaration, declaring and holding that the glass fabrics (epoxy B stage) varnished fibre glass sleeves are glass fabrics covered under Tariff Item 22F and eligible for exemption under Notification 87/76. (D) Your Lordships will be pleased to issue a permanent injunction restraining the respondents from recovering duty of excise on glass fabrics (epoxy B stage) and varnished fibre glass sleevings under Tariff Item 22B of the First Schedule to the Act. 2. The matter was admitted by another Division bench of this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cs", meaning all varieties of fabrics manufactured either wholly or partly from man-made fibres or yarn. "22B. Textile fabrics impregnated, coated or laminated with preparations of cellulose derivatives or other artificial plastic materials not elsewhere specified. 22F. Mineral fibres and yarn and manufactures therefrom, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, the following, namely, (1) Glass fibre and yarn including glass tissues and glass wool; (2) Asbestos fibre and yarn; (3) Any other mineral fibre or yarn, whether continuous or otherwise, such as slag wool and rock wool; (4) Other manufactures in which mineral fibres or yarn or both predominate or predominate in weight." 5. The petitioners have been manufacturing glass fabrics and then treating them with epoxy B and, therefore, the glass fabrics are styled as glass fabrics (epoxy B stage). They are also manufacturing varnished fibre glass sleeves and unvarnished fibre glass sleeves. There is no controversy that all these fibres are ultimately mineral fibres and fabrics made therefrom are mineral fabrics. On and from 15-3-1976, or 16-3-1976 to be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re liable to excise under Item 22B. Another notice also was issued and it is to be found at Annexure E, dated 20-6-1981. It is in respect of varnished and unvarnished fibre glass sleeves and scraps thereof. The petitioners were called upon to show cause to the respondent No. 3 "why the classification of the products, namely, varnished fibre glass sleeves and unvarnished fibre glass sleeves and scraps of those products, which did not, according to the Officer, fall under Tariff Entry 22F be not classified as falling under Tariff Item 22F(4).) (It was not stated in this notice that these items fell under Item No. 22B, but under some misconception it was mentioned that Item No. 22F(4) was attracted). The petitioners gave reply to those notices which are to be found at Annexure F, and written submissions also were given and some good deal of expert evidence was adduced. Ultimately, the two orders, Annexures H and I came to be passed in February 1983, holding that glass fabrics (epoxy B stage) were not mineral fibres and yarn falling under Tariff Item 22F, but they fell under Tariff Item 22B and, therefore, the classification of the product was revised. Qua the other items of manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 22F has to be considered but in the light of that Clause (4). In such a situation, what is to be seen is whether in this manufacture in which mineral fibres or yarn or both are involved, those mineral fibres or yarn or both predominate or not. The very concept of predomination either constitutionally or from the weight point of view presupposes some other process and laminating or impregnating or coating is such a process. That is envisaged in 22F(4). Only thing, therefore, to be seen is whether such manufactures like varnished fibre glass sleeves and their scrap are such manufactures in which mineral fibres or yarn or both predominate. The petitioners had shown before the respondent No. 3 (and those certificates are again produced before us also to be found at pages 76A, 76B, 80 and 81) that apart from constitution there is predominance from the point of view of weight also. Therefore, on this much interpretation alone, it could be said that the decision of the authority is bad. Even with respect to glass fabrics (epoxy B stage), that is, glass fabrics which are impregnated, coated or laminated with preparations of cellulose derivatives or of other artificial plastic materials a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be classified under Tariff Item 22F. The petitioners submit that in the market and in trade circles, glass fabrics (epoxy B stage), varnished and unvarnished fibre glass sleeves are known as glass fabrics and are understood as such and are not known as textile articles in any manner. It is a common understanding of people in trade and people dealing with the products that these products are admittedly glass fabrics. The petitioners submit that the orders placed for the purchase of the products by different consumers with the petitioner firm also name these products as glass fabrics. The petitioners submit that even the industrial consumer of the products and a dealer of the product have both classified these products as glass fabrics as understood by them in the course of their trade." The opinion of other bodies are also to be found at Annexure `O' collectively, who are the industrial consumers of these products. Curiously enough, this part of the factual averment has not been controverted, though the petition was admitted as back as on 28-3-1983, that is about two years ago from today. So these factual averments are to be treated as true and once they are treated as true, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was so applied all these years and to us it appears quite rightly done. 10. We may say that we are in good company in respect of this interpretation of ours. The Madras High Court had an occasion to deal with very type of sleeves of fibre glass in connection with the Customs Act in the case of Standard Batteries Ltd. v. Appraiser, Appraising Dept. and Others, 1981 (8) E.L.T. 257. There also, the word "textile" occurring in Item 53 was to be interpreted and the learned Judge of the Madras High Court held that the word "textile" occurring in Item 53 must be understood in its ordinary and popular sense and not in its primary or technical sense. The High Court found as a matter of fact that since the trade and industry did not look upon the fibre glass sleevings as variety of `textile manufacture', they would not be classifiable under Item 53 of the Customs Tariff. We also hold the same thing on the basis of the very practice of the trade and industry, which is successfully shown as not looking upon the fibre glass sleevings or the glass fabrics (epoxy B stage) adopted as variety of textile manufacture or textile fabrics. 11. In view of the above finding of ours, we are not requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
