Judgment:
1. The revision application filed before the Govt. of India on transfer to the Tribunal, is being treated as an appeal.
2. The appellants manufacture among others brake assemblies, and parts thereof classifiable under Item 68. A show cause notice was issued on 28.10.80 alleging that the classification list filed by them were approved provisionally pending verification of the products and that it appeared that the various pistons and plungers classified by the company under TI68 were classifiable under TI 34A as "Pistons". The appellants were directed to show cause as to why duty on all past clearances of Pistons should not be collected.
3. In their reply, the appellants stated that the term "pistons" had not been defined in the First Schedule and hence it should be given the popular meaning in its commercial sense.
Quoting from Chambers Dictionary, Readers Digest Great Encyclopaedia Dictionary Vol.II, Newnes Family Dictionary and G.N. Garmonsway the Penguin English Dictionary, they urged that 'pistons' were understood only as 'pistons' of I.C. Engines, Steam Engines and Pumps. They pointed out the basic differences between pistons and the plungers manufactured by them. They contended that the items were known as "Air Brake Assembly" and not as "Pistons" in the Trade and Commerce.
4. A revised show cause notice was issued on 22.12.80 setting out the details of the pistons and plungers. The appellants sent a detailed reply setting out their contentions.
5. On 6.2.81, the Asstt. Collector, Central Excise, Madras passed the Order-in-Original holding that on an examination of the products, he was of the view that they fulfilled all the conditions required for a 'piston'. He observed that the pistons were acting against fluid pressure displaced or compressed fluids. He held that they were rightly classifiable under T.I. 34A. He also justified the demand for the extended period.
6. An appeal was preferred to the Collector who, held under the impugned order dated 31.8.81 that the pistons and plungers manufactured by the appellants were knwon as "pistons" and "plungers" by persons dealing with the products. He upheld the classification under TI 34A.However, he was of the view that the extended period would not apply since there was no allegation of any wilful misstatement or suppression. The demand was confirmed for a period of six months.
7. Sh. V. Lakshmi Kumaran, learned counsel for the appellants showed us the samples of the products and also explained the functions of these parts with reference to charts. He urged that in common parlance only pistons used in I.C. Engines and Pumps were known as "pistons". The products manufactured by the appellants were parts of brake assembly.
The functions of these parts were not similar to or identical with the functions of a piston. While the pistons were designed to generate pressure or to convert energy of one form to another, the plungers were designed to function only as valves and were not intended to generate or convert energy. It was argued that even though the appellants had described these items as "pistons" or "reaction pistons" in their pamphlets, the Tribunal has to examine the parts and their functions without attaching much importance to what the appellants had stated in their Brochure. The counsel also relied on the following decisions: (1) 1985 (22) E.L.T. 701 (Mad.) (Union of India and Ors. v. T.S.R. & Co.)Jayanti Paper Mills, Bombay v. C.C.E., Bombay).
8. Sh. H.L. Verma, SDR argued that the T.I. 34A referred to Pistons in general and was not restricted to pistons in I.C. Engines. The Asstt.
Collector has examined the product and has come to the conclusion that it fulfilled all the conditions required for answering the description of a piston. In the trade, the manufacturers and the dealers treat the products as plungers and pistons. The plunger is nothing but a piston.
In 1983 (12) E.L.T. 116 (Bom.) the Bombay High Court, in the case of Commissioner of IncomeTax v. Aggarwal& Co., has referred to the Supreme Court decision which held that while interpreting a general term used for describing any commodity in any fiscal legislation, the general term so used covers that commodity or item or article in all its form and varieties. In 1985 (22) E.L.T. 611 (Tribunal) (Bombay Switchgears v. C.C.E., Bombay) the Tribunal has considered that if one goes to a shop and asks for a "Domestic Electrical Appliance", it is obvious that he would not be shown the shaver, hair dryer or other specific article which one had in mind. The SDR urged that piston was a general term and the plungers manufactured by the appellants would justify the classification under T.I. 34A.9. The point for consideration in this appeal is whether the product manufactured by the appellants could be classified under TI34A or under T.I. 68. Item 34A refers to parts and accessories of motor vehicles and tractors including trailers, following namely, (vi) pistons. The term "piston" has not been defined under the Act. So, one has to take into consideration the technical connotation of the word and as to how it is understood in the trade. The Chambers Dictionary defines "pistons" as, "A Cylindrical piece moving to and fro in a hollow cylinder as in Engines and Pumps." The Readers Digest Great Encyclopaedia Dictionary Vol.11 defines pistons as," A disc or short cylinder fitting closely within cylindrical vessel in which it moves to and fro used in Steam Engine, Pumps etc. to impart or receive motion by means of a Piston Rod." Newnes Family Dictionary contains following description :- "A Cylindrical piece moving to and fro in a hollow cylinder as in Engines and Pumps." "A short Cylinder fitted into and moving in a Cylindrical tube used to generate and apply pressure." It was urged that piston was understood in the commercial parlance only as piston of I.C. Engines. But the dictionary meanings given above do not lend support to this contention because the product is described as "in Engines and Pumps". One cannot, therefore, say that the term "piston" would apply only to the "pistons" used in I.C. Engines or Pumps. The Technical meaning of piston can be gathered from Chambers' Technical Dictionary, "A Cylindrical piece moving to and fro in a hollow cylinder as in engines and pumps to displace or compressing fluid as in pumps and compressors." The Asstt. Collector has rightly stated that the three conditions should be satisfied before the product could be considered as "piston" i.e. (i) It should be a Cylindrical piece; (ii) It should have reciprocating motion in the cylinder either under fluid pressure or to displace or compress fluids; and (iii) It should apply or generate pressure.
In this case, the plungers are Cylindrical pieces. They have a reciprocating motion under fluid pressure because even according to the learned counsel for the appellants, it acts as a valve for pumping-out excess air. The plunger is intended to release excess pressure developed in the brake system to the atmosphere. It was argued that it does not generate pressure. But it is intended to maintain a particular pressure in the brake system. Me Graw Hill Dictionary defines piston as a "Sliding metallic cylinder that reciprocates in a tubular housing either moving against or moved by creating pressure." Pistons are also known as Plungers (Me Graw Hill Die. P.1221 2nd Ed.). An examination of the product and a scrutiny of its functions show that the items could be very appropriate^ clarified as "pistons", more so in the absence of any restriction in the Tariff Entry limiting it to pistons in I.C.Engines.
10. An examination of the definition of plunger in Me Graw Hill Dictionary also indicates that it is a long rod or piston of a reciprocating pump. Since the term "piston" is a general description in the tariff item and the product in question answers to that description it can be classified under that Item.
11. The learned counsel for the appellants urged that in common trade parlance, the items are not known as "pistons". He emphasised that pistons of I.C. Engines alone are known as "pistons". But then in the pamphlets filed by them, these parts have been described as "pistons" or "reaction pistons". It was urged that the marketing cannot change the technical definition of the product. But the description given by the party having regard to the functions cannot be overlooked. It is not merely a label or advertising technique suggestive for attracting customs. The appellants have described these items as "pistons" because they were known in the market as "pistons" and perform the functions of piston. Having regard to the definition of pistons and plungers in technical dictionary, which can be usefully referred to especially when the matter involves technical interpretation, one can safely come to the conclusion that the products merit classification under T.I. 34A.12. We may also add that in regard to Brake Valves-El Single Circuit Brake System, the operation is described as follows:- "By operating the Treadle, the Plunger (i) transmits the force on to the graduating Piston (ii) through the graduating Spring (iii) The Graduating Piston moves down closing the Exhaust Valve (iv) On the Valve Seat in the Graduating Piston (v) Opening the Inlet Valve (vi) Pressure builds up due to air pressure, the Spring balances, the piston moves upwards closing the Inlet Valve and the Valve balances." In view of this description, it is clear that the product is only a piston. We do not accept the contentions that the term "piston" in Item 34A would apply only to pistons in the I.C. engines. We, therefore, uphold the impugned order and dismiss the appeal.