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TMI Blog2003 (9) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice dated 16-10-1986 issued by the Baroda Collectorate, copy of which is Annexure-2 to the writ petition. It is also evident from the report of the Commissioner, Central Excise dated 7-9-2000 vide Annexure-12 to the writ petition. In our opinion in view of the clear finding in the report of the Central Excise Commissioner dated 7-9-2000 Annexure-12 to the petition as well as in the order of the CEGAT, Bangalore that the aluminium grills are of different sizes and are utilised in false ceiling and walls connected with the ducts in the centrally air-conditioning plant or hot-air for heating in the building and ventilation system which are installed in the building, the products, manufactured by the petitioner can only be classified under Chapter 76 as articles of aluminium. The same are admittedly not sent to the manufacturers of air-conditioners for use in air-conditioning machines. Hence even assuming that the order of the CEGAT, Bangalore Bench has not merged into the order of the Supreme Court we are satisfied on merits that the order is correct. Learned Counsel for the respondents submitted that the questions of classification of the petitioner's product should be left to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and has a factory at Noida where it manufactures aluminium grills, dampers and diffusers which are fixed on the walls and ceilings of buildings as ventilation opening where the air cooling/heating ventilation system or central air-conditioning system are installed in the building and sites. 4.It is alleged in Paragraph 2 of the writ petition that the air distribution products (aluminium grills, etc.) manufactured by the petitioner are tailor made as per the specifications and size of the buyers who are mainly doing the job work of erection/installation of heating, ventilation, air-cooling and air conditioning system at various premises and buildings. These grills, dampers and diffusers (namely, air-distribution products) are used by fixing them on the walls and ceilings to cover the openings to provide them with better show on the ceiling or walls through which the air flows from higher level to lower level and from inside to outside and vice versa. 5.It is alleged in Paragraph 4 of the writ petition that this fixing of goods manufactured by the petitioner does not in any way involve either changing of the temperature or any chemical or mechanical process involving change in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-conditioner. In Paragraph 11 of the writ petition it is alleged that these air distribution products manufactured by the petitioner are not known as parts of air-conditioners, since they are only fitted in the walls or ceilings through which the air passes. It is alleged that these products manufactured by the petitioner have always been classified under Chapter 76 as items of aluminium products. 7.In Paragraph 13 of the writ petition it is alleged that the grills manufactured by the petitioner are used either for general purpose or with an air-conditioning system. The grills manufactured by the petitioner are only to cover the opening on the walls or ceiling or for passing air through the same. There is no other purpose of these grills. As such it is alleged that these grills cannot be classified on the basis of their use/end-use. These are more like accessories. On the other hand, the grills used in the room/split type air-conditioner are inseparable parts specially designed for the use therein. 8.It is alleged in Paragraphs 14 to 17 of the writ petition that earlier the petitioner's products were always classified under Tariff Entry 7613.90 and not under Entry 84.15. In fact a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other grills of aluminium or steel which are used in the ceiling or window, are liable to be classified under the heading of the based metal namely Entry 7613.90 (for aluminium products) and 7308.90 (for steel products) because of their multiple use, such as, for distribution of fresh air in a ventilation system in the kitchen, car parking, industrial shed etc. for evaporative coolers and for distribution of cold and hot air in the air-conditioning system for large buildings. A true copy of the representation is Annexure-5 to the writ petition. In this representation the petitioner has specifically requested that items like diffusers, dampers and grills should not be classified under Entry 84.15 but as under Entry 7613.90. 11.The petitioner filed a writ petition being Writ Petition No. 524 of 2000 which was disposed of by means of an order dated 5-7-2000 Annexure-6 to the writ petition. In that order it was directed that the petitioner should make a representation which should be decided preferably within a month. Accordingly petitioner made a representation, true copy of which is Annexure-7 to the writ petition. Thereupon the respondent No. 1 by letter dated 1-9-2000 directed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the grills specially designed for use as part of air-conditioners or split type air-conditioners. A true copy of the said circular is annexed as Annexure-13 to the writ petition. It is this circular which has been challenged in this writ petition. 14.It is alleged in Paragraph 28 of the writ petition that the stand taken by the CBEC that the grills used with the air-conditioning machine/systems which is held excisable under Chapter 84.15 is misconceived as it is a known fact that the air-conditioning systems/machine erected at the site/building are not movable goods and hence would not be termed as goods liable for excise duty under the Central Excise Act. The petitioner has relied on the decision of the Supreme Court in Triveni Engineering and Industries Ltd. v. Commissioner of Central Excise, 2000 (120) E.L.T. 273 in which it was held that fixing of steam turbine, alternators, coupling and aligning them in a specified manner and installation and erection of turbo alternator on the platform would be immovable property, and as such it cannot be excisable goods. On the same reasoning, the air-conditioning system, the chilling machine, cooling towers, air treatment unit (air handli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se buyers are engaged in the job work of erection/installation of heating, ventilation, air-cooling and air-conditioning systems at various premises and buildings. The enquires made by the respondent No. 4 the Deputy Commissioner, Central Excise, Noida and the documents annexed as Annexures-13 and 14 to the writ petition confirms these facts. The air-conditioning machine mentioned in the Circular dated 13-9-2000 is different from the air-conditioning systems/projects erected/installed by the aforesaid buyers. The grills manufactured by the petitioner are not fitted with any machine, instead these are fixed on the ceilings and walls of the buildings/premises where the air-conditioning systems has to be installed. These grills, dampers and diffusers are not part or essential parts of the air-conditioning machine. They are fixed on the walls and ceilings of the premises to cover the opening of the ducts and give entry to the air passing through it. It is alleged in Paragraph 7 of the rejoinder affidavit that an item to become a part of the air-conditioning machine either should be attached with that machine, as its integral and inseparable part, or at least it should be involved in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rejoinder affidavit. Against that judgment of the CEGAT an appeal was filed before the Supreme Court being Civil Appeal No. 13256 of 2001 which was dismissed on 21-9-2001 [2002 (141) E.L.T. A90 (S.C.)] vide Annexure-ARA-3 to the additional rejoinder affidavit. 19.We have carefully perused the judgment of the CEGAT, Banglore Bench and we are in respectful agreement with the same. Since we agree with the reasonings given in the judgment of the CEGAT it is not necessary for us to repeat the said reasoning given by the CEGAT in its judgment again as we are in full agreement with the same and are endorsing the same. 20.It may be mentioned that the department had throughout classified the product of the petitioner under Tariff Entry Chapter 7613.90. This is evident from the orders of the Assistant Collector, Central Excise, Noida dated 19-4-1993 vide Annxeure-1 to the writ petition and the Circular/Trade Notice dated 16-10-1986 issued by the Baroda Collectorate, copy of which is Annexure-2 to the writ petition. It is also evident from the report of the Commissioner, Central Excise dated 7-9-2000 vide Annexure-12 to the writ petition. 21.It may be mentioned that the Commissioner, Meer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is registered. Article 136 is a discretionary power in the Supreme Court and it does not confer a right of appeal upon a party but merely vests discretion in the Supreme Court to interfere in exceptional cases vide State of Bombay v. Rusy Mistry and Another, AIR 1960 SC 391, Municipal Board v. Mahendra, AIR 1982 SC 1293 etc. 23.Article 136 does not confer a right to appeal at all. It only confers a right to apply for a Special Leave to Appeal vide Bharat Bank v. Its Employees, AIR 1950 SC 88. It is for this reason that a dismissal of an SLP does not amount to merger of the order of the High Court or the Tribunal with the order of the Supreme Court. The Supreme Court can reject an SLP without even going into the merits of the case e.g. if it believes that the matter is not so serious as to require consideration by the Supreme Court or for any other reasons. 24.On the other hand Section 35L provides a regular forum of appeal. Hence if an appeal under Section 35L is dismissed by the Supreme Court, whether by giving reasons or without giving reasons in either case. The doctrine of merger will apply and the judgment of the High Court or the Tribunal will merge into the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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