- (1.) CAN an article which is capable of being bent be called rigid ? This really is the only, rather simple question that comes to be decided in this petition.
(2.) THE petitioners are manufacturers of what are called 'PTFE' sheets. These are plastic sheets and are for the purposes of excise covered by Tariff item 15A(2) of the Schedule to the Central Excises and Salt Act, 1944. The relevant portion of the entry reads thus : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 'Item No. Description of goods Rate of duty - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 15 -A. (2) Articles made of plastics all sorts, Fifty per cent including tubes, rods, sheets, foils, ad valorem. sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible, including lay flat tubings, and polyvinyl chloride sheets, not otherwise specified.' On 29th May 1971 the Union of India issued an Exemption Notification in regard to items falling under item No. 15 -A(2). The relevant portion thereof reads thus : - '15A. (ii) Under Government of India, Ministry of Finance (Department of Revenue and Insurance) Notification No. 68/71 -Central Excise, dated the 29th May 1971, the Central Government hereby exempts articles made of plastics, all sorts, falling under sub item (2) of Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) except - (i) rigid plastic boards, sheeting, sheets, and films, whether laminated or not.......' The Petitioners were then asked to show cause why they should not be charged to excise under the provisions of Item No. 15 -A(2) on the basis that the articles they manufactured were rigid plastic sheets which were excepted from exemption by the Exemption Notification. The Petitioners, in showing cause relied upon a test certificate obtained by them from the Government of India's National Test House, Calcutta which stated that the Petitioners' articles, when compared with the requirements laid down by the American Society for Testing Materials (ASTM), were classified as semi -rigid plastics. The petitioners also relied upon two affidavits. The deponents of both affidavits were technically qualified people and one held a commercial appointment with an international plastics company. The affidavits stated that the petitioners' articles were not rigid sheets and that the ASTM method of testing was universally accepted. The authorities relied upon a test certificate obtained from the same Test House which classified the petitioners' articles, as compared to the requirements laid down in a Trade Notice issued by the Bombay Central Excise Collectorate read with its corrigendum as 'rigid plastic'. Reference may be made to that Trade Notice in view of the fact that the order of the 2nd Respondent is based upon it. The Trade Notice is dated 26th December 1970 and the relevant portion reads thus : - '........... A question has been raised as to what is the demarcating line between 'rigid' and 'flexible' plastic boards, sheeting, sheets, films, etc., referred to in the notifications. The matter has been examined and it has been decided that plastic boards, sheeting, sheets, films which have an elasticity of not over 700 kilograms per square centimetre at 233 Centigrade and 50% relative humidity when tested in accordance with the method of test for stiffness of plastics as laid down in A.S.T.M. (D -47) should be treated as 'non -rigid or flexible'. All other plastic boards, sheetings, sheets and films which have an elasticity of over 700 kilograms per square centimetre at 23 Centigrade and 50% relative humidity should be treated as 'rigid'.' The 2nd Respondent after hearing Counsel on behalf of the Petitioners concluded that the excisability of the Petitioners' articles was governed by the guidelines laid down in the Trade Notice and that, therefore, only the test certificate based upon the Trade Notice could determine the excisability of the Petitioners' articles. He held that the Petitioners' articles were rigid sheets liable to excise under item No. 15 -A(2).
(3.) THE Petitioners preferred an appeal against this finding and in appeal relied upon further affidavit of persons with technical knowledge and, for the most part, associated with commerce in plastics. The sum and substance of these affidavits, was that the Petitioners' articles, namely PTFE sheets, were nowhere in the world regarded as rigid and that their special utility lay in the fact that they were chemically inert and tough without being rigid and, therefore, ordinarily suitable as packaging material. The appellate authority, the 1st Respondent, after hearing Counsel, gave his findings in these words : - '....... The appellants admit that the goods are semi -rigid. According to the Tariff, the Rigid Plastics or Flexible plastics are only mentioned. So it is clear that the goods fall under Tariff Item 15A(2) with effective Notifications Nos. 71/71 and 27/72. The appeal petition is therefore rejected'. Against the orders of the 1st and 2nd Respondents the Petitioners have presented this petition. 8th February, 1979 :;