VALLABH GLASS WORKS LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) A short but interesting question in the present petition is whether the goods manufactured by the petitioner -company, namely, wired glass, figured glass, rolled glass, coloured figured glass, coolex figured glass and coolex wired glass belong to the category of sheet glass, and whether they are liable to be subjected to excise duty under tariff item 23A(l) of the First Schedule of the Central Excise and Salt Act, 1944, hereinafter referred to as 'the Act.' * * * *

(2.) NOW the main contention of Mr. C.T. Daru, the learned Advocate appearing for the petitioner -company, is that the disputed items of glass manufactured by the petitioner -company can by no stretch of imagination be considered to be sheet glass and consequently tariff item 23A could never apply to these items. It was contended by Mr. Daru that figured glass, rolled glass, wired glass, coolex figured glass, coloured figured glass and coolex wired glass manufactured by the petitioner -company are different from sheet glass and plate glass ; that in general commercial parlance these goods are never treated as sheet glass and have well understood differences as known in the market. It was submitted that general public who have to deal with these items in open market do not call these items as sheet glass. In order to substantiate this contention evidence was led before the departmental authorities. But the said evidence was brushed aside as irrelevant and 'off the rail'. * * * *

(3.) THERE was evidence before the departmental authorities as to how these items of glass were understood in common parlance and in the commercial market by persons conversant with the matter. The petitioner examined one K.D. Shah before the departmental authorities and in addition to K.D. Shah, they examined two witnesses - D.K. Patel and A.K. Roy. Out of these witnesses K.D. Shah was an independent witness, having business dealings in goods which were the subject matter of dispute in the present case. He was aged 71 and was a businessman from Ahmedabad In his deposition he stated that he was doing the business of buying and selling sheet glass, figured glass, wired glass, coolex wired glass, laminated glass, toughened glass, and such material. He was doing the said business for the last 30 years. He further stated that he knew all the types of glasses and they are different from each other and known by different names and were known to be distinctly different from each other in the market. He also stated that these glasses have different characteristics, uses and prices. Each type of glass is a different article from others and known by different name and sold and bought at different price in the market by all persons in this trade all over India. He further stated that so far as plate glass is concerned, it was different from the glasses stated above and it was not manufactured in India and was imported from foreign countries. This witness offered himself for cross -examination but the departmental authorities did not think it fit to cross -examine him. Now the evidence of this witness was very material for the test of the commodity being known in common parlance and commercial world but surprisingly enough this evidence has been brushed aside by the Assistant Collector by a cryptic observation that all that was stated by the witness was off the rail. The same is the evidence of other two witnesses but as they were employees of the petitioner -company we do not advert to their version but the fact remains that the evidence regarding the treatment of the disputed goods by persons conversant with the use thereof in the commercial world has been brushed aside on entirely irrelevant considerations by the departmental authorities, The Assistant Collector decided to ignore the evidence of this witness by saying that it was off the rail. The position is worse when we read the judgments and orders of the appellate Collector and the revisional authority. They have not thought fit to look at this evidence. In that view of the matter, when the correct test has not been applied by the departmental authorities for deciding the present question and when they have not gone into the relevant and material evidence on this aspect, and especially when they have not chosen to cross -examine the witnesses, and have not led any rebuttal evidence, the findings arrived at by the departmental authorities would obviously suffer