Full Judgment
2. The representative of the appellant relies upon a decision of the Tribunal in Supreme Industries v. C.C.E., Aurangabad, Appeal E/961/94-C. By that order, he says, the Tribunal has classified the goods manufactured by the appellant, identical to those presently under consideration, under Heading 39.17.
3. The departmental representative relies upon the finding of the Collector that the pipes are used for removal of soil, waste, rain water, drainage system and such pipes are known in common parlance as gutters and the goods used in such pipes will be fittings for gutters.
He also sites the provision of the Indian Standard Specifications No.IS 1626 VH of 1984 to say that pipe is connected to a refilling gutter, with devices connecting of pipe and refilling gutter to be considered as fittings of gutters.
4. The Collector's order does not cite any reasons whatsoever for his conclusion that the pipes manufactured by the appellant, which are used as parts of drainage system of a buildings are to be gutters. His reference to common parlance is obviously nothing other than his own subjective view. He does not cite a single piece of evidence in support. The contention of the representative of the appellant that the gutter is to be distinguished from a pipe, in that it is open at the top, and not completely enclosed, appears to be reasonable. It is supported by the drawings of three types of gutters by the Indian Standard specifications, which we referred to earlier. Each of these gutters is seen to be open; unlike a pipe which is enclosed and being open only at the ends. He also referred to the catalogues in addition to the meaning to gutter, as an open channel for carrying away waste.
The contention that the fittings used to connect a pipe to roofing gutter and hence to be considered as fittings for gutter and not fittings for a pipe is not acceptable. If that is so, the material connecting A to B can well be a fitting for A as well as B. In any event, V the contention of the appellant that it does not manufacture such fittings has to be taken note of. The distinction made by the Tribunal in the decision cited, between pipes and gutters which has been followed in two other decisions of the Tribunal has to be applied.
5. There is another point raised before us by the representative of the appellant. The fittings of the pipes are obviously pipe fittings and cannot be covered under Heading 39.17. That being the case even if we consider such pipes from the functional aspect, to be gutters, these fittings (no doubt pipes themselves) could not be classifiable under Heading 39.25 for the reason they are covered by earlier Heading 39.17.
Note 11 to Chapter 39 of the tariff which provides that Heading 39.25 applies inter alia only to articles not covered in any of the earlier headings of the chapter will apply. We cannot therefore uphold the classification by the Collector. The demand for duty is therefore not maintainable.