Judgment:
1. These are five appeals filed by the Revenue, being aggrieved with the two separate orders of the Collector of Central Excise (Appeals), Bombay. The respondents are M/s. Anup Engg. Ltd., Ahmedabad. The matter relates to the classification of rough, unmachined and unlinned forged product - called "Dished Ends" which were usable only after further process of machining by the customers. The Asstt. Collector of Central Excise in separate orders had classified the product under Item No. 68 of the old Central Excise Tariff, while the respondents have sought classification under Item No. 25(13)(iv). On appeal, the Collector of Central Excise (Appeals), Bombay, held that the product "dished ends" were correctly classifiable under Item No. 25(13)(iv) of the Tariff .and not under Tariff Item No. 68.
2. The matter was heard on 26-9-1996, when Shrei Kamal Trivedi, advocate, with Shri V.P. Joshi, advocate, appeared for the respondents.
Shri M. Jayaraman, JDR, represents the appellants (Revenue).
3. Shri M. Jayaraman, JDR, stated that the goods in question were a specific part and had assumed definite shape and were correctly classifiable under Item No. 68 of the Tariff as goods not elsewhere specified. He referred to the Tariff Item 25(13)(iv) and submitted that the form in which the dished ends were cleared by the respondents were not akin to the forms as mentioned in sub-item (13).
4. Shri Kamal Trivedi, advocate, replied that all along their goods were being classified as products of iron & steel. Although, the Tariff entry under Item No. 68 was on the statute book since 1975. At no stage the Department sought to classify these products under the residuary Item No. 68. Prior to 1-8--1983 their products were classified by the Department under Item No. 26AA(ia) and thereafter it was classified under Item No. 25(8) of the Tariff which covers pieces roughly shaped by rolling or forging of iron and steel not elsewhere specified. On consideration they themselve came up for classification under sub-item (13)(iv) of Item No. 25 which attracted higher rate of excise duty. He submitted that the dished ends were not a finished product and was only a part which is usable by their customers after it is further processed and was to be fitted on towers, vessels and storage tanks etc. only after lining and further processing. He referred to the dictionary meaning of the term 'form' used in sub-item (13) and emphasised that the forms specifically mentioned such as ridges, channels etc. were only illustrative and the Tariff Item does not rule out the form in which their product were cleared, from the purview of the said sub-item No. 13.
5. We have carefully considered the matter. The Item No. 25 covers Iron and Steel, and products thereof. This Tariff entry covers not only iron and steel in the crude form but also articles of iron and steel.
6. The Tariff entry relating to iron and steel was revised w.e.f.
1-8-1983. While earlier iron and steel in crude form, intermediate products and the finished products were classifiable under different tariff entries, w.e.f. 1-8-1983 all the products were merged in one single entry. The Item No. 68 was already on the statute book when the Tariff entry was revised. There are a number of decisions to the effect that the goods could be taken to Item No. 68 only when they were not otherwise classifiable in any other specific entry of the Tariff.
7. The process of manufacture has been referred to by the Collector of Central Excise (Appeals) in his order and he had discussed the scope of sub-item (13)(iv) of Item No. 25. The sub-item (13) is reproduced below : (i) galvanised sheets, plates One thousand three hundred and forms and fifty rupees per metric tonne.
(ii) tin plate and tinned sheets One thousand seven including tin taggers and hundred and fifty rupees per cuttings of such plates, metric tonne, sheets or taggers (iii) lacquered sheets, varnished One thousand two hundred sheets including cuttings of and fifty rupees per metric lacquered sheets and tonne.
(iv) others One thousand three hundred per metric tonne.
It will seen that sub-item (13) covers coils for rerolling, sheets, plates, and universal plates of iron and steel. In addition, it also covers the various forms. By way of illustration, the forms 'ridges, channels, pipes, their fittings' have been mentioned. The expression used is 'such as'. The use of this expression indicates that the actual forms mentioned are only indicative. The respondents have explained that their product 'dished ends' is made from plates are not ready for use had to be further processed before use and that their form will be covered by sub-item (4) of that sub-item.
8. We find that Tariff Entry No. 25 covers various products of iron and steel and the particular shape of the article is not the determining factor for their non-classification under this Tariff Entry. In the case of Tata Iron & Steel Co. Ltd. v. Union of India -1988 (35) E.L.T.605 (SC), the Supreme Court had dealt with forged products, "wheels and axles" which were produced by M/s. Tata Iron & Steel Co. Ltd. (TISCO) for Indian Railways. At the stage of forging, wheels and axles had taken a definite shape of 'wheels and axles' but still not 'usable' as such by the Railways. They were required to be subjected to further processing in the Railways workshop before they could be put to actual use. The Supreme Court had held that at the stage wheels and axles were cleared by M/s. TISCO duty was payable under Item No. 26AA of the old Tariff, but they were not liable to pay duty on those goods under Item No. 68 as some further processes were required to be made on such wheels, tyres, axles and blanks etc.
9. In the case before us, the Revenue had sought to take these goods directly to Item No. 68.
10. The learned advocate had also referred to a number of decisions in support of his contention that classification under Item No. 68 could be considered only when the goods were not otherwise classifiable in any one of the specific Tariff Entries. These goods all along had been classified under the Iron and Steel tariff and at no stage before the present proceedings classification under Item No. 68 was an issue.
11. The Collector of Central Excise (Appeals) had discussed the matter at great length in Para 4 of his order. The Para 4 of his order is extracted below: "4. I have carefully gone through the submissions made by the appellants and have also gone through the orders passed by the Asstt. Collector against which the appeals have been preferred by the appellants. In respect of the first two appeals, I find that the issue involved is classification of product 'Dished Ends' and other products mentioned in Classification List No. 1/85 (Range Entry No. 463/85), dated 20-3-1985, and Classification List No. 1/84, dated 7-8-1984. The appellants have claimed classification of the said products under T.I. 25(13)(iv), whereas the department has classified the same under T.I. 68.1 find from the findings of the Asstt. Collector that the product 'Dished Ends' includes other parts namely 'Pipe Caps', 'Standard Flanges' and 'Covers'; that Dished ends are manufactured from Circles made out of sheet/plates/universal plates falling under T.I. 25 and hence it loses the shape of sheet/plates/universal plates as defined at Explanation No. XVIII/XVII/XVI given to T.I. 25, because nowhere in T.I. 25 circle is defined. The circle is rolled with a specific design, dimension, shape and further grinned to remove the unwanted forged ends of Dished End for further use as an identifiable parts of certain equipment used in various industries. Thus Dished Ends is a part of machining. This rolled Dished Ends is not roughly rolled and hence they are outside the purview of description under T.I. 25(8). At the same time Dished Ends is not a form of sheet/plate or universal plate because the form of sheet have been given very specifically under T.I. 25(13) i.e. form should be in shape of edges, channels (other than slotted channels), rain-water pipes and their fittings made from sheets, plates or universal plate. Only these forms if made from sub-item (13)(i) to (13)(iv) of T.I. 25 would be classifiable under T.I. 25(13). All other forms other than these forms are not eligible for classification under T.I. 23. Thus this item is not classifiable under T.I. 25(13). I do not agree with the Asstt. Collector's findings, since the appellants have contended that on close reading of tariff description of T.I. 25, it can be seen that the said tariff item has been designed to cover on following products within its orbit :- (iv) Universal plates, all of iron or steel whether cold rolled or hot rolled (vii) Tinned, lacquered or varnished sheets including tinned taggers, and The broad Heading or T.I. 25(13) has further divided into four groups for fixing tariff rate, and only those items which are mentioned in the sub-groups would be subject to duty of excise. The Item No. 25(13)(iv) is general in nature and it covers all iron and steel products which are not referred to in T.I. 25(13)(i) to T.I. 25(13)(iii). The appellants have further clarified that the reliance placed by the Asstt. Collector on explanations No. XVI to XVIII below T.I. 25, is irrelevant and unwarranted for the purpose of classification, inasmuch as these explanations provide specifications for universal plates, plate and sheet, and it does not refer to any specification for a 'form' made out of these items; and that T.I. 25(13) covers 'forms' made from plates or sheets such as ridges, channels (other than slotted channels), rain-water pipes, and their fittings; and that the Asstt. Collector has mis-interpreted the meaning of the expression 'such as' and restricted himself only to those 'forms' under T.I. 25(13)(iv) which are specifically mentioned after the expression 'such as'. They have therefore contended that this approach or method of interpretation is not correct and legal. I agree with the appellants above contention since the expression 'such as' used in the tariff entry indicates that the items specified after the word 'such as' do not exhaust the category of 'forms' but are only illustrative and the illustration given therein namely ridges, channels, rainwater pipes and their fittings, would not restrict the scope of 'forms' made from sheet or plates to that extent, nor would they narrow down the scope of inclusion of such 'form' in the said entry. The High Court of Gujarat, in the case of Jalal Plastic Industries v Union of India and Ors., reported in 1981 ECR 245-D, has held that "It appears to us that the expression 'such as' used in Clause (ii) merely illustrates Polymerisation and Co-polymerisation products. The enumeration, in our opinion of the product which follows the expression 'such as' is, therefore, not exhaustive". In the circumstances, the views expressed by me gets support of the above High Courts decision, and the product 'Dished Ends' and other products mentioned in classification lists in question would appropriately classifiable under T.I. 25(13)(iv) and not under T.I. 68 as held by the Asstt. Collector. In the circumstances, both the appeals i.e. Appeal No. 1176/85 and 1698/85 succeed on merits. As regards the third appeal No. 1699/85, it is in respect of refund of Rs. 48,279.38 which has been rejected by the Asstt. Collector on the main ground that their Classification List No. 1 /84, dated 7-8-1984 claiming classification of the products under T.I. 25(13)(iv) as well as the exemption claimed under Notification No. 203/83, dated 1-8-1983 as amended, has been rejected vide Order No. MP/102/1985, dated 30-9-1985. However, I have held that the products 'Dished Ends' and other products mentioned in classification list are classifiable under T.I. 25(13)(iv) and not under T.I. 68, this appeal also succeeds on merits." 12. The Revenue in the grounds of appeal had admitted that the expression 'such as' used in the Tariff Entry was only illustrative.
They have, however, contended that the other forms should correspond to or should be akin to the forms of ridges, channels, rain-water pipes and their fittings etc. We find that these products also had different shapes and it could not be said that ridge or channel for fitting had to be only of a particular form. We consider that the nature of these shapes will not take them out of Item No. 25, and only on this ground, they could not be taken out of the purview of Item No. 25 and classified under Item No. 68 (by passing Item No. 25 - a specific entry).
13. The learned advocate had stated before us that no further fittings etc. were made by them and that the unlinned dished ends were removed as such. In this view of the matter, we consider that the matter is distinguishable from the matter in the case of Tata Chemicals Ltd. v.CCE, Rajkot, Tribunal's Order No. E/75/96-C, dated 7-2-1996 in A. No.E/3049/86-C [reported in 1996 (84) E.L.T. 248 (Tribunal)].
14. Taking all the relevant considerations into account and the above discussion, we do not find any ground to interfere with the orders passed by the Collector of Central Excise (Appeals). As a result, all these five appeals filed by the Revenue are rejected.