D.A.MEHTA, J. - (1.) This is a petition under Article 226 of the Constitution of India challenging the order in appeal passed by respondent No.2 on 25th August,2004 (Annexure-F). The petitioner, a Private Limited Company is engaged in the business of manufacture of domestic flour mills, popularly known as "Gharghanti". The case of the petitioner is that the flour mill manufactured by the petitioner does not contain any inbuilt electrical mechanism. Two abrasive stones are connected with a shaft passing through both and such a shaft is connected to an electrical motor through V belt and pulley mechanism. Thus according to the petitioner it is not an electric appliance as understood in common parlance as well as in technical sense understood in engineering circles.
(2.) On 28th February 1986 when the Central Excise Tariff Act,1985 (Tariff Act) came into operation the machines, like one manufactured by the petitioner, were covered under Heading No.84.37 which reads as under : "84.37 Machines for cleaning, sorting or grading seed, grain or dried leguminous vegetable' machines used in milling industry or for the working of cereals or dried leguminous vegetables, other than farm type machinery". The petitioner has been classifying domestic flour mill under the said Heading of Tariff Act. However, on 31st May,1990 the Central Board of Excise and Customs (CBEC) issued Circular bearing No.11/90-CX.4 whereby it was declared that flour mills, with or without electric motors were properly classifiable under Heading No.85.09 of the Tariff Act.
(3.) The circular came to be challenged before this Court by way of Writ Petition bearing Special Civil Application Nos.10542 of 1994 and 10544 of 1994. After hearing the parties the Court directed the petitioners therein, including the present petitioners, to approach the Appellate Tribunal with a direction to the revenue not to effect any recovery of duty for past dues accrued upto 15th September,1994 till the appeals were decided by the Tribunal.;