INDIAN METALS AND FERRO ALLOYS LIMITED CUTTACK Vs. COLLECTOR OF CENTRAL EXCISE BHUBANESHWAR
LAWS(SC)-1990-11-4
SUPREME COURT OF INDIA (FROM: DELHI)
Decided on November 22,1990

INDIAN METALS AND FERRO ALLOYS LIMITED Appellant
VERSUS
COLLECTOR OF CENTRAL EXCISE,BHUBANESWAR Respondents





Cited Judgements :-

S.S. ASSOCIATES VS. COMMISSIONER OF C. EX. [LAWS(CE)-2009-12-136] [REFERRED TO]
AMI PIGMENTS PVT LTD VS. STATE OF GUJARAT THR SECRETARY [LAWS(GJH)-2010-2-366] [REFERRED TO]
INDIAN OIL CORPORATION LTD VS. JHARNA SARKAR [LAWS(CAL)-2004-2-54] [REFERRED TO]
B P L PHARMACEUTICALS LIMITED VS. COLLECTOR OF CENTRAL EXCISE VADODARA [LAWS(SC)-1995-5-2] [REFERRED TO]
OSWAL AGRO MILLS LIMITED VS. COLLECTOR OF CENTRAL EXCISE [LAWS(SC)-1993-4-102] [DISTINGUISHED]
NAVJYOTI COOP GROUP HOUSING SOCIETY VS. UNION OF INDIA [LAWS(SC)-1992-9-71] [REFERRED TO]
CETHER VESSELS LIMITED VS. ASSISTANT COLLECTOR OF CENTRAL EXCISE [LAWS(MAD)-1991-10-10] [REFERRED TO]
SHIRISH FINANCE AND INVESTMENT PVT VS. M SREENIVASULU REDDY [LAWS(BOM)-2001-9-50] [REFERRED TO]
J. MITRA & CO. LTD. VS. COMMISSIONER OF CENTRAL EXCISE, NEW DELHI-I [LAWS(CE)-2002-1-183] [REFERRED TO]
SANDIP AGRAWAL VS. COLLECTOR OF CUSTOMS [LAWS(CAL)-1992-7-43] [REFERRED TO]
NESTLE INDIA LIMITED VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-2004-5-207] [REFERRED TO]
ANDHRA PRADESH PAPER MILLS LTD. VS. C.C.E., VISAKHAPATNAM-II [LAWS(CE)-2006-5-46] [REFERRED TO]
S.S. ASSOCIATES VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-2009-10-160] [REFERRED TO]
RITESH ENTERPRISES AND KARWAR DOCK AND PORT LABOUR COOPERATIVE SOCIETY LTD. VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-2009-10-162] [REFERRED TO]
HINDUSTAN RIMMER VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-2004-5-208] [REFERRED TO]
G.R. ENGINEERING WORKS PRIVATE LTD. VS. R.G. NAGUENKAR [LAWS(BOM)-1997-3-89] [REFERRED TO]
MUNICIPAL CORPORATION OF DELHI VS. A K TRAKRU [LAWS(DLH)-2004-2-24] [REFERRED TO]
M R F LIMITED VS. ASSISTANT COMMISSIONER [LAWS(KER)-1992-9-32] [REFERRED TO]
AMI PIGMENTS PVT LTD VS. STATE OF GUJARAT [LAWS(GJH)-2007-4-31] [REFERRED TO]
ROHITASH KUMAR VS. OM PRAKASH SHARMA [LAWS(SC)-2012-11-9] [REFERRED TO]
AJAY GANDHI VS. B SINGH [LAWS(SC)-2004-1-40] [REFERRED TO]
VOLTAS LTD VS. STATE OF GUJARAT [LAWS(GJH)-2006-9-68] [REFERRED TO]
COMMISSIONER OF COSTOMS VS. GUJARAT PERSTORP ELECTRONICS LTD [LAWS(SC)-2005-8-48] [REFERRED TO]
RAYBAN SUN OPTICS INDIA LTD VS. DY. COMMISSIONER [LAWS(RAJ)-2013-10-20] [REFERRED TO]
KLA CONST TECHNOLOGIES PVT LTD VS. EMBASSY OF ISLAMIC REPUBLIC OF AFGHANISTAN [LAWS(DLH)-2021-6-86] [REFERRED TO]
Tube Investments of India Limited VS. Deputy Commercial Tax Officer [LAWS(MAD)-2002-8-214] [REFERRED TO]
TANKER OWNERS AND OPERATORS ASSOCIATION VS. CENTRAL BOARD OF DIRECT TAXES [LAWS(GJH)-1995-3-29] [REFERRED]
QUEST LIFE SCIENCES P. LTD. VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-2015-8-16] [REFERRED TO]
G GOPAL RAO VS. GOVERNMENT OF ANDHRA PRADESH [LAWS(APH)-2002-9-64] [REFERRED TO]
DOLAT ELECTRIC CORPORATION VS. COMMERCIAL TAX OFFICER [LAWS(CAL)-2009-1-45] [REFERRED TO]
MADURAI KAMARAJ UNIVERSITY VS. MADURAI KAMARAJ UNIVERSITY [LAWS(MAD)-2021-7-26] [REFERRED TO]
I P Rings Limited VS. Tamil Nadu Taxation Special Tribunal [LAWS(MAD)-2005-12-44] [REFERRED TO]
SHIBA SHANKAR MOHAPATRA AND ORS. VS. STATE OF ORISSA AND ORS. [LAWS(SC)-2009-11-102] [REFERRED TO]
G GOPAL RAO VS. GOVERNMENT OF ANDHRA PRADESH [LAWS(APH)-2002-9-47] [REFERRED TO]
ABU BAKER KHAN VS. VICE CHANCELLOR ALIGARH MUSLIM UNIVERSITY [LAWS(ALL)-2003-7-180] [REFERRED TO]
STAR PISTONS PRIVATE LIMITED VS. UNION OF INDIA [LAWS(GJH)-2000-3-57] [REFERRED]
FEDERAL MOGUAL TPR (INDIA) LIMITED VS. STATE OF KARNATAKA [LAWS(ST)-2014-1-3] [REFERRED TO]
J K UDAIPUR UDYOG LTD VS. STATE OF RAJASTHAN [LAWS(RAJ)-2001-3-46] [REFERRED TO]
HINDUSTAN POLES CORPORATION VS. COMMISSIONER OF CENTRAL EXISE CALCUTTA [LAWS(SC)-2006-3-39] [REFERRED TO]
SHAHNAZ AYURVEDICS VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(ALL)-2004-1-28] [REFERRED TO]
SADRE ALAM VS. UNION OF INDIA [LAWS(DLH)-2021-10-11] [REFERRED TO]
S R F FINANCE LIMITED VS. CENTRAL BOARD OF DIRECT TAXES [LAWS(DLH)-1994-9-90] [REFERRED TO]
PUNJAB NATIONAL BANK NEW DELHI VS. ALL INDIA NEW BANK OF INDIA EMPLOYEES FEDERATION NEW DELHI [LAWS(ALL)-1996-1-85] [REFERRED]


JUDGEMENT

RANGANATHAN - (1.)THESE three appeals can be disposed of by a common order. The appellant is a manufacturer of pipes, tubes and poles made of iron and steel. These products are generally used by the telephone and telegraph departments of the Government of India but can also be used for purposes of transmission and lighting. The question is whether these goods are liable to excise duty under item 26AA or under item 68, in the First schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act').
(2.)TARIFF Item No. 26AA was introduced w.e.f. 2444-1962 in the First Schedule to the Act. Item 26AA reads thus:- JUDGEMENT_125_SUPP1_1991Html1.htm
However, soon afterwards, the Government of India isued a notification dated 1-3-1963 under R. 8 of the Central Excise Rules (hereinafter referred to as 'the Rules') by which "telegraph, telephone and electric lighting. and transmission poles falling under Item 26AA of the First Schedule of the Act" were declared completely exempt from duty subect to certain conditions and limitations prescribed in the notification with which we are not concerned. (It may be here mentioned that this some similar notification was in force at various points of time but it is unnecessary to set out the full particulars thereof).

The appellant, having paid the duty in respect of the above goods under item 26AA, applied to the Assistant Collector, Central Excise on 10-5-1963 for the refund of the duty already paid in view of the notification abovementioned. Permission was also sought for clearance of poles without payment of duty from the factory with immediate effect. The Assistant Collector, by an order dated 25-5-1963, rejected these requests on the ground that the conditions prescribed in the notification for exemption were not satisfied and not on the ground that the goods manufactured did not fall under item 26AA. The appellant thereupon preferred an appeal before the Collector of Central Excise who held that the goods manufactured were eligible for the exemption contained in the notification. This order of the Collector was passed on 29-1-1964. The result was that the appellant paid no duty on the goods in question and the goods were cleared without either payment of duty or collection of duty from the purchasers right from 1962 till 1975.

On 1-3-1975, the legislature introduced Tariff Item No. 68 in the First Schedule to the Act covering "goods not elsewhere prescribed". Even thereafter, the appellant filed classification lists showing the poles as falling under Item 26AA and eligible for exemption under the relevant notification (which had taken the place of the notification of 1-3-63). These classification lists were approved and the appellant continued to clear its goods without paying duty till August, 1982.

(3.)EARLIER, on 8-12-1977, the Superintendent Central Excise had taken a view that the transmission and lighting poles manufactured by the appellant were classifiable not under item 26AA but under item 68 of the Central Excise Tariff and that, therefore, the appellant was liable to pay duty on all goodsmanufactured by it from 1-3-1975 till the date of the notice. The appellant was asked to furnish a statement of the goods manufactured and sold earlier and also to file a classified list for the above goods in respect of the future. The appellant objected to this, referred to the earlier exemptions granted and contended that the poles were covered by Tariff Item No. 26AA and that it continued to be entitled to the exemption under notification No. 69 of 1973 dated 1-3-1973 as amended by a notification No. 16 of 1976. Apparently, this contention was not acceptable to the Revenue. So, the appellant filed Writ Petition No. OJC 1072 of 1977 in the Orissa High Court challenging the letter dated 8-12-1977 and obtained, on 26-12-1977, an order restraining the Revenue from enforcing the letter of 8-12-77. It received a further letter from the Superintendent on 6-11-1981 to the effect that the assessee-appella'nt will have to pay duty under Tariff Item No. 68 in regard to "swaged poles" and calling upon it to file a classification list well in advance on the above footing. The appellant challenged this letter by filing a Writ Petition No. 329 of 1982 and obtained a stay order. These two writ petitions were eventually disposed of by the Orissa High Court by its order dated 6-10-1982. The High Court declined to interfere with the adjudication proceedings under the Act in the writ petition and dismissed the writ petitions with the direction that an adjudication be made within three months from the date of the communication of the order after giving full opportunity to the appellant to establish its stand and by a reasoned decision. Subsequently, on 31-3-83, the Assistant Collector passed an order holding the goods of the value of Rs. 16,04,753 classifiable under Tariff Item 68 and confirmed the demand for the period 1-3-1975 to 21-1-1983 (excluding the period from 26-12-1977 to 6-10-1982, the period of the stay granted in the writ petition). The Appellate Collector, by his order dated 30-983, dismissed the appeals preferred and confirmed the order of the Assistant Collector in respect of the goods to the tune of Rs. 13,53,653 being the goods cleared during the period from 22-3-79 to 21-1-83.
Further appeals were preferred before the Central Excise and Gold (Control) Appellate Tribunal (CEGAT) by both parties. There were five appeals by the assessee before the Tribunal in respect of five demand notices and proceedings in respect thereof. The department had preferred the appeal inrespect of the demand for the period 1-3-75 to 21-3-79 which had been set aside by the Appellate Collector. The Tribunal disposed of the appeals on 16-4-85. It did not agree with the appellant's contention that the goods were dutiable under Tariff item No.68. It was, however, of the opinion that the back duty demand should be restricted to a period of six months prior to the issue of the show cause notice dated 8-12-77 (excluding the period from 26-12-1977 to 16-3-1978). It upheld a demand of Rs. 15,45,217. The appellant filed a rectification application pointing out that the stay had been vacated by the High Court only on 6-10-82 and this was disposed of by the Tribunal on 12-5-1986. The Tribunal directed the exclusion, from the levy of back duty, of the larger period from 26-12-77 to 6-10-1982. There was, we are told, another rectification application and an order thereon which is the subject matter of another Special Leave Petition which is not before us today. We shall leave that out of account.

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