Full Judgment
2. Shri N.C. Sogani, Ld. Consultant, appearing on behalf of the appellant produced the catalogue of the product imported, namely, "Twin Screw Extruders" and explained that the two screw diameters put together will exceed 150 mm and would fulfil the requirement of the notification. He submitted that a Public Notice had been issued vide No. 318/83 dated 22-11-1983 consequent to the decision taken in the Collectors' Conference held at Delhi on 23-09-1983 and 24-09-1983, by which the Conference had decided that the benefit of the notification will be available to the Plastic Extruder above 150 mm screw diameter irrespective of whether there is a single screw or twin screw in the extruder. In support of his contention he further argued that as per the catalogue the screw diameters were of 91 mm and 125 mm and while arriving at the screw diameters of the extruder, the distance between the 2 centres of the screws covering the radius of both the screws has to be taken into account, which will be in excess of 150 mm and, therefore, the benefit of the concessional assessment under the Notification No. 40/78 should be extended. He also explained with reference to the other catalogues, that for taking the capacity of the extruder as a whole, the screw diameter should be taken as the screw capacity of the extruder.
3. The Ld. J.D.R. Shri M.K. Sohal drew attention to the order of the Collector (Appeals) wherein the Collector has held the view that "in mathematical parlance, diameter has a different definition" and in this case 166 mm as worked out may represent the working capacity and not the diameter for the purpose of the notification. He also referred to the definition of diameter 'Gerrish's Technical Dictionary' Technical Terms Simplified by Howard H. Gerrish, as under :- "Diameter (draft.) The length of a line drawn through the centre of a circle and terminating at the circumference on each end." and further maintained that the diameter can only refer to a circle, therefore, the screw diameter mentioned in SI. No. 14 of the notification would refer to the diameter of a screw. That even in the trade parlance, it is called screw diameter and the literature produced also speaks as screw diameter which means diameter of the screw and no other interpretation can be adopted. As regards the trade notices, he said that these trade notices do not have any statutory force and it cannot over-ride a statutory provision. He referred to the case law (i) 1987 (9) ETR 699 (Tribunal) in the case of Collector of Central Excise, Bombay-II v. M/s. Pioneer Industries, Thane, and also (ii) 1978 (2) E.L.T. J-680 (Bom.) - The Union of India and Ors. v. M/s. The Elphinstone Spinning & Weaving Mills Co. Ltd., relevant portion from the Head Note is reproduced as under :- "Trade Notices - Effect - Even if wrong Trade Notices are issued still the Government cannot be estopped from canvassing the true interpretation of the statute before a court of law as trade notices have no statutory effect." 4. The pleas are considered. The appellants have imported 3 Nos. "Twin Screw Extruder" for the manufacture of PVC Pipes and have claimed that the diameter of the Twin Screw should be taken for the purpose of availing the exemption. The Notification No. 40/78 dt. 01-03-1978, SI.No. 14 refers to screw diameter and definition indicated by the department is, it is a length of a straight line drawn from side to side of a circle passing through a centre. The term diameter as defined in McGraw Hill Dictionary is as follows :- (i) a line segment which passes through the centre of a circle and whose end lie on the circle; On the basis of the definitions accorded in the above authorities, a diameter can only be with reference to a circle and the notification does not mention 2 circles but only one circle. In effect, the notification would tend to apply to the diameter of a circle, the circle being here a screw. Therefore, it cannot be taken to read as the screw capacity or extruder capacity, but only as a screw diameter and on its strict interpretation, the benefit cannot be given to the diameters of 2 screws. The trade notices referred to cannot be taken to be the basis for interpretation of a notification. It may be an extraordinary view and an executive decision which, however, cannot be taken as applicable while interpreting a notification. The Hon'ble Supreme Court's decision in 1978 ELT J-350 (SC) in the case of M/s.
Hemraj Gordhandas v. Asstt. Collector of Central Excise & Customs "Place of intendment in a taxing statute: It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. If the tax-payer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority." 5. In view of the above discussions, the appeal has no merits and is accordingly rejected.