- (1.) At all times material for purposes of this miscellaneous petition, the petitioners company were manufacturing a product to which they gave the name "Cell-O-Therm". This was a thermal insulation product which could be cut and shaped in various forms to serve various insulating needs. It is manufactured from broken glass which is powdered and then mixed with certain chemicals such as carbon black, and flamed in electric furnace and annealed in an 'annealing lelu'. After these processes we have the final product to which the petitioners gave the trade name of 'Cell-O-Therm.' A brick or block of this product has been produced in Court and a block of light, rough, opaque, grey black material is observed. The question involved in this petition is whether this material going by the trade mark is 'glass' or 'glassware' for purposes of excise duty. The petitioners' contention throughout their dispute with the excise authorities has been that their product can never be classified as 'glass' or 'glassware', but the petitioners have not succeeded in establishing their contention before the Assistant Collector of Central Excise and thereafter in appeal before the Collector of Central Excise and finally in revision before the Joint Secretary to the Government of India. It is thereafter that they have moved the Court contending that the approach and the conclusions to be found in these three orders are perverse and cannot and ought not to be sustained by a Court of Law. It is these grievances and contentions of the petitioners which require investigation.
(2.) The excisability of the article is claimed by the Excise authorities under Item 23A(4) of the first Schedule to the Central Excises and Salt Act, 1944; the entire item may be set out and it reads as under : "23A - GLASS AND GLASSWARE (1) Sheet glass and plate glass ... 10% ad valorem (2) Laboratory Glassware ... 5% " (3) Glass shells, glass globes and Chimneys for lamps and lanterns. ... 10% " (4) Other glassware including tableware ... 15% "" A perusal of this Item indicates that two types of glass mentioned in sub-item (1) are made excisable as glass and the remaining three sub-items provide for levy of duty at different rates for glassware. Sheet glass, plate glass, glass shells, glass globes and chimneys for lamps and lanterns attract an excise duty of 10 %, under sub-items (1) and (3), laboratory glassware attract an excise duty of 5 % under sub-item (2) and other glassware including tableware, which is the residuary sub-item (4) attracts an excise duty of 15 %. The Assistant Collector in his order, after considering the various contentions, held that the product manufactured by the petitioners viz. Cell-O-Therm was covered by both 'glass' and 'glassware'. He, therefore, held that the product was liable to Central Excise duty under Tariff Item 23A(4). The aggrieved petitioners preferred an appeal to the Collector of Central Excise who after setting out the respective contentions, observed that all these have been considered by the Assistant Collector. No fresh grounds, according to the Collector, had been raised before him (the Collector) and in the circumstances he confirmed the order of the Assistant Collector. As the matter will be decided fully in this Court on the materials submitted by the parties, it is unnecessary to make detailed observations on these orders, but it becomes necessary to observe that the learned Collector of Central Excise exercising his appellate jurisdiction has passed the order in a manner that does not inspire any confidence in his appellate powers. On the other hand, the manner in which the order is made casts grave doubt on his capacity to understand the nature of the appellate functions he performs. The revisional order by the learned Joint Secretary is not as vulnerable as the order of the Collector, but even then many of the observations made in the said order are startling and do not reveal care and caution which should be revealed by such high functionaries exercising revisional powers in a serious manner.
(3.) As stated earlier, the matter has been fully argued before me and all the points which were canvassed before these authorities have again been canvassed before me. Accordingly, since the rival arguments will be set out and discussed it is futile to deal with all these three orders. The latter two of which can be called very unsatisfactory.;