- (1.) The principal issue that arises for consideration in this appeal is whether "thrust washers", "thrust half-washers" and 'wrapped' bushes manufactured by the appellant exclusively for motor vehicles could be classified as "thin walled-bearings" so as to attract duty under Notification No. 99 issued in 1971. Apart from this another legal question which has cropped up mainly due to the High court's finding and approach of departmental authorities whether a goods which has a meaning assigned to it with consensus ofdepartment and trade could be held to be so even without satisfying the requirements on the premise that the court and quasi-judicial authorities are not bound by it.
(2.) Legally there can be no two opinions that a trade notice issued by the Collector of Excise or even the central and Excise Tariff Board (in brief 'board') has no binding authority and the assessing authority can draw its conclusions but the importance of it can be appreciated in this appeal only when facts, in brief, are narrated. The appellant is manufacturer of the bushes and washers which are exclusively used in motor vehicles. They are thus parts and accessories and were dutiable under Item 34-A which read as under:in 1971 Notification No. 99 was issued exempting motor vehicles' accessories and parts except those which are mentioned in the Schedule. The notification is reproduced below: "In exercise of the powers conferred by sub-rule (1 of Rule 8 of the central Excise Rules, 1944, the central government hereby exempts motor vehicles parts and accessories, falling under Item No. 34-A of the First Schedule to the central Excises and Salt Act, 1944 (1 of 1944, other than those specified in the Schedule hereto annexed, from the whole of the duty of excise leviable thereon. THE SCHEDULE 1. Brake linings 2. Clutch facings 3. Engine valves 4. Gaskets 5. Nozzles and nozzle-holders 6. Piston rings 7. Shock absorbers 8. Sparking plugs 9. Thin-walled bearings 10. Tie rod ends 11. Electric horns. "the effect of this notification was that from the date it was issued every accessory and part of the motor vehicles became exempt from payment of any duty except the items mentioned in it. Since the bushes and washers manufactured by the appellant were accessories and parts of motor vehicles, it was not liable to pay any duty and consequently the appellant cleared these goods produced in the factory without paying any duty from 1971 onwards. In February 1978 a meeting was called by the Board in which representatives ofthe trade participated. Two decisions appear to have been taken by consensus, one that such washers and bushes as were manufactured by the appellant were bimetal bearings and second, they could be classified as "thin-walled bearings" if they satisfied the specifications as provided in Indian Standard 4774/1968. The consensus arrived at the meeting is extracted below: "(I) Bushes, bearings and thrust half-washers would fall within the category of bearings; (ii) the question whether a bearing should be considered as a thin-walled bearing should be decided after taking into account the other relevant dimensions as laid down in ISI specification IS:4774-1968 (it was understood that this had not been further revised). (iii) the question whether a bearing was or was not 'bimetallic' or 'multimetallic' would not be relevant for deciding whether it was a 'thin-walled bearing'. "this led to issuing of trade notice dated 23/9/1978 which read as under: "It is considered that valve rocker arm bushes, axle bushes, suspension bushes, steering bushes, thrust washers, sintered bushes, and miscellaneous bushes would fall within the category of bearings. However, the relevant dimensions as laid down in ISI specification IS:4774-1968 should be taken into account to decide whether a bearing is 'thin-walled bearing'. Whether a bearing is or is not 'bimetallic' or 'multimetallic' would not be relevant for deciding whether it is a 'thin-walled bearing'. 2. All the Trade Associations and Chamber of Commerce and Industries are requested to bring the contents of this Trade Notice to the notice of their member-constituents. "acting on this Trade Notice, the Superintendent of central Excise issued a letter to the appellant which is reproduced below: "Take notice that on behalf of the central government. I hereby demand payment by you of the sum of Rs. 1,79,504.21 ps (Rs One lakh seventy-nine thousand five hundred and four and paise twenty-one only within ten days from the date hereof. Particulars of demand: As per Tariff Advice No. 44 of 1978 dated 7/8/1978 and Poona central Excise Collectorate Trade Notice No. 168 of 1978 dated 23/9/1978 all the thin- walled bearings attract central excise duty provided they are manufactured to ISI specification IS:4774-1968 and are used or have application as M. V. parts. In view of the above the thin-walled bearings are thrust washers and bushes like valve rocker arm bush etc. cleared from your factory from 7/8/19788 works out as under. "the appellant denied that the washer and bushes manufactured by it were thin- walled bearings. In the note of arguments, it was claimed that wrapped bushes and thrust washers were not thin-walled bearings. The relevant portion of the note of objections is extracted below: "(A) IS:4774-1968 does not give any specifications for 'bushes'; (b) IS:4774 gives specifications for (i) Thin-walled bearings and (ii) Thrust half washers; (c) IS:4757-1968 specifies dimensions for 'wrapped bushes' and 'thrust washers': 562 (d) The bushes manufactured by KOEL for automotive use being formed from strip are wrapped bushes and are in conformity with IS:4757- 1968; and (e) The thrust half washers and thrust washers manufactured for automotive use are in conformity with IS:4774-1968 and IS:4757- 1968 respectively. On examination of IS:4774-1968 and 4757-1968 one can appreciate that 'wrapped bushes' and 'thrust washers' (half or full) are articles different from 'thin-walled bearing' and therefore not excisable from the date of exemption notification. "
(3.) The Assistant Collector did not agree and held that since the goods manufactured by the appellant were thin-walled bearings falling under Item No. 34-A, it was liable to pay duty on these goods. The Assistant Collector did not accept the claim of the appellant that only bearings which are manufactured according to the specification mentioned in Tables Nos. 2 to 5 of ISI were liable to be classified as thin-walled bearings. In appeal the Collector of central Excise held: "According to this specification, thrust washers are used at one or each end of a plain jurnal (sic) bearing in order to take light duty thrust loads, a function performed by a bearing. Therefore, technically it will not be incorrect to call thrust washers including thrust half washers, which are nothing but one half of a split thrust washer, as bearings. Similarly, a wrapped bush is a bush with a longitudinal split in one place and bush means a bearing liner in the form of a complete tube covering 360 degrees. Bearing liner is a tubular element whose inner surface is the bearing bore. Thus, bushes of the type manufactured by the appellants also are bearings. In case the thrust washers and wrapped bushes have thin walls having specifications given in IS:4774-1968, these will be classifiable as thin- walled bearings and thus liable to pay duty under Tariff Item 34-A. It is only when these are not according to those specifications, they would be other than thin-walled bearings. Accordingly, I hold that the impugned goods are thin-walled bearings and must pay duty under Tariff Item 34-A. "the Collector thus did not record any finding whether the goods satisfied IS:4774-1968 specification. The orders were challenged by the appellant by way of a writ petition. The High court held that there was no material to determine how the bushes and washers manufactured by the appellant were understood in the trade circle. The High court was of opinion that ISI specification was irrelevant. It could not reflect trade understanding. It did not agree that there was difference between bearing and bushes. The court went into merits as well and held that it was not disputed that "thrust washers" and "wrapped bushes" manufactured by the company are in accordance with specifications under IS:4774-1968, i. e. , in the nominal diameter range 16 to 150 mm. The High court held that since the function performed by the bushes and washers manufactured by the appellant was the same as those performed by the bearings, they were liable to be treated as thin-walled bearings as they are in accordance with the specification given in the ISI Schedule. The High court further held that even if it be assumed that two views could be possible on the classification of certain goods, the orders passed by the Collector and Assistantcollector were not liable to interference unless it was found that they were perverse or unreasonable or entirely unsustainable.;