Civil Appeal No 2860 of 1987
From the Judgment and order dated 871987 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No 1311 of 1983 and Suppl
A No 1798 of 1987 BI
Soli J Sorabjee SR Grover and KJ John for the Appellant
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is a statutory appeal from the decision and order of the Customs Excise and Gold Control Appellate Tribunal briefly referred to as CEGAT  under section 35L of the Central Excise and Salt Act 1944 hereinafter called the Act 
It appears that the appellant is a manufacturer of Hospital and Pharmaceutical Appliances and Heavy Duty Industrial Canteen Equipment
The following 14 items were classified by him under Tariff Item No 68 of the said Act in his Classification List No 106 dated 2731979 1 Storage Tank 2 Cooking Range Electric opera 734 tion and gas operated 3 Baking oven 4 Deep Fat Fryer 5 Bain Mafie 6 Sterilizing Sink 7 Expresso Coffee Machine 8 Steam Jacketed Vessel Steam operated 9 Bread Toaster 10 Bulk Cooker  Fryer 11 Chappatty PlateChappatty Puffer and Chappatty PlatePuffer 12 Dish Washing Machine 13 Potato Pooler and 14 Masala Grinder
 The Assistant Collector held the view that products 2 to 14 were classifiable under Tariff Item No 33C in view of the Explanation thereof
After giving notice the Assistant Collector demanded differential duty amounting to Rs19162220 for the period Ist of March 1979 to 30th June 1980
The Assistant Collector confirmed the demand except in respect of Item No 8 namely Steam Jacketed Vessel
Being aggrieved from these orders the appellant filed appeals before the Collector
The Collector accepted the appellant s contentions and came to the conclusion that these were to be classified under Tariff Item No 68 and not under Tariff Item No 33C Tariff Item 33C at the relevant time contained the Explanation I which is as follows Explanation I Domestic electrical appliances  means electrical appliances normally used in the household and similar appliances used in hotels restaurants hostels
offices educational institutions hospitals train kitchens
aircraft or ship s pantries canteens tailoring establish ments laundary shops and hair dressing saloons
The revenue went up in appeal before the CEGAT
The Tribunal noted that the equipments in question were used in industrial canteens Five Star Hotels big hospitals etc
The nature of the items such as deep fat fryer Expresso coffee machine bread toaster chap patty plate etc
were all electrically operated machines
The Tribunal further noted that Tariff Item 33C was in respect of domestic electrical appliances not elsewhere specified
According to the Tribunal the intention of the legislature in respect of domestic electrical appliances was clear from the Explanation
It is apparent that the above named items are specially designed for use in big canteens attached to industrial units big hotels hospitals etc
where food in bulk quantity for hundreds of people is required to be prepared and served
These required electric power exceeding 230 volts in order to have considerable capacity for preparing and serving food
Their prices ranged from 735 Rs7000 to Rs15 lakhs
It was submitted that these are important and relevant factors for distinguishing the said items as distinct and different from those appliances which are used normally in the household
It was submitted that these heavy duty items fall outside the purview of Tariff Item No 33C The Tribunal was of the view that though considerable space is required for these items but space was not any criteria for determining this question
According to the Tribunal that these items could not be classified under Tariff Item No 68
We are of the opinion that the Tribunal is right
It is manifest that these equipments were electrical appliances
There was no dispute on that
It is also clear that these are normally used in household and similar appliances are used in hotels etc
The expression similar is a significant expression
It does not mean identical but it means corresponding to or resembling to in many respects somewhat like or having a general likeness
The statute does not contemplate that goods classed under the words of similar description  shall be in all respects the same
If it did these words would be unnecessary
These were intended to embrace goods but not identical with those goods
If the items were similar appliances which are normally used in the household these will be taxable under Tariff Item No 33C
It appears that the Gujarat High Court in the case of Viswa  Co vs The State of Gujarat 17 Sales Tax Cases 581 had occasion to consider whether electric fans are domestic electrical appliances for the purpose of Bombay Sales Tax Act 1953
Bhagwati J as the learned Chief Justice then was speaking for the Gujarat High Court observed as follows A domestic electrical appliance in our opinion would be an electrical appliance of a kind generally used for domestic purposes
It may also be used at places other than the home or the house but that would not destroy the character of a domestic electrical appliance which attaches to it by reason of its being a kind of an electrical appliance generally used for the household
There are several electrical appliances which are generally used in the household such as electric irons electrical sewing machines and electrical cooking ranges which are also used in other establishments
But these electrical appliances do not therefore cease to be domestic electrical appliances
It is of course not necessary that an electrical appliance in order to 736 satisfy the description of a domestic electrical appliance must be actually used in the home or the house
What is necessary is that it must be of a kind which is generally used for household purposes and if that test is applied there is no doubt that electric fans are domestic electrical appliances and the Tribunal was therefore right in holding that they fall within entry 52 of Schedule B We agree that it is not necessary to be a domestic electrical appliance that it must be actually used in the home or the house
It must be of a kind which is generally used for household purposes
It appears to us that the types of items concerned in this appeal are generally used for household purposes and that is sufficiently good test for classification in the light of the explanation to Tariff Item No 33C
In view of the fact that the Tribunal recognised that the appellant had set out all the details in the classification list and the revenue had assessed him under Tariff Item 68 the Tribunal came to the conclusion that there was no intention to evade payment of duty
Therefore the Tribunal directed that the modification of the classification list could only be prospective and not retrospective
The Tribunal was just and right in so doing
The Tribunal was also right in holding that in the absence of any proof of suppression of fact section 11 A of the said Act would not be applicable
The show cause notice raising a demand of duty was issued on 8th of September 1980 and the Tribunal sustained the demand for the period 9th March 1980 to 30th June 1980 in respect of items 3 to 7 and 9 to 14
We are of the opinion that the Tribunal was right and the decision of the Tribunal therefore does not call for interference
In that view of the matter the appeal is rejected
There will be no order as to costs NPV Appeal dismissed


Summary:
 The question for consideration in this case was whether it was appropriate for the High Court to interfere with an election process at an intermediate stage after its commencement and before the declaration of the result of the election held for filling up a vacancy in the office of the Chairman of a Panchayat Union under the Tamil Nadu Panchayats Act 1958 The Act on the ground that there was an error in the matter of allotment of symbols to the contesting candidates
The appellant
the respondent No 1 the respondent No6 and two others were nominated as candidates at the election held to the office of the Chairman
Panchayat Union Madathukkulam
On scrutiny of the nomination papers the nomination papers of the appellant respondents Nos 1 and 6 and the two others were found to be laid by the Returning officer
Under rule 171  of the Tamil Nadu Panchayats Conduct of Election of Chairman of Panchayat Union Councils  Presidents and members of Panchayats Rules 1978The Rules the Returning officer was directed by the State Government to assign to the candidates of the National and State parties the symbols reserved by the Chief Election Commissioner
The symbol reserved for the Indian National Congress I was hand 
Under the procedure prescribed by the Government intimation was received by the Returning officer showing the appellant as the candidate of the Indian National Congress I under the signatures of the President of the Tamil Nadu Congress I Committee on the 3rd February 1986
A similar letter was handed over by respondent No 6 on that date showing that he was also the official candidate of the Indian National Congress I Committee
That letter also appeared to have been signed by the President of the Tamil Nadu Congress I Committee
Faced with two persons claiming to be the official candidates of the same party the Returning officer declined to 760 assign the symbol hand  to either of the two
These two candidates ie the appellant and respondent No 6 then gave in writing their choice of symbols belonging to the unreserved category
The Returning officer allotted the symbol of glass tumbler  to the appellant and the symbol fish  to respondent No 6
The Returning officer then published the list of the candidates nominated with the symbols allotted to each of the three candidates whose nomination papers had been found to be valid
Immediately on publication of the said list the President of the Tamil Nadu Congress I Committee who was alleged to have signed the letters in favour of both the appellant and respondent No 6 as the official candidates wrote to the respondent No 3 the Election Authority as well as the Secretary to the Government Rural Development Department Government of Tamil Nadu on 4286 stating that he had not given his approval to respondent No 6 being the official Congress I candidate and the authorised candidate of the Congress I Party was the appellant
On receipt of the letter the respondent No 3 sent a message to the Collector of Coimbatore to treat the appellant as the official candidate of the Indian National Congress I Party and to assign the symbol hand  to him
The Collector communicated this message to the Returning officer on 6286
The Returning officer issued in accordance with that direction an Errata Notification in Form IV assigning the symbol hand  reserved for the Indian National Congress I to the appellant on that date itself and sent copies of the said Notification to all the contesting candidates
This action of the Returning officer was challenged by respondent No I a validly nominated candidate with bow and arrow  as his symbol by a writ petition in the High Court contending that the issuing of the Errata Notification was an abuse of power on extraneous and irrelevant considerations and there was undue interference with the actual conduct of the election and praying that the Errata Notification dated 6286 should be quashed and the election directed to be proceeded with in accordance with the Notification issued on 3286 under which the glass tumbler  symbol had been allotted to the appellant
The High Court Single Judge dismissed the writ petition holding that the petitioner respondent No I could not be considered as an aggrieved party and that the dispute could be if at all between the appellant and respondent No 6
The respondent No I filed an appeal before the High Court
A Division Bench allowed the appeal quashed the Errata Notification issued by the Returning officer and directed him to hold the election on the basis of the symbols originally allotted treating glass tumbler  as the symbol of the appellant etc
Aggrieved by the order of the Division Bench the appellant filed this appeal by special leave
761 Allowing the appeal the Court  HELD The appellant contended that the Division Bench was in error in setting aside the Errata Notification issued by the Returning officer in exercise of its jurisdiction under Article 226 of the Constitution of India before the declaration of the result of the election in view of an alternative remedy under the Rules framed under section 1782iii of the Act entitled Decision of Election Disputes Relating to Panchayat Union Councils
766A B Rule 5 of the Rules provided that subject to the superintendence direction and control of the Election Authority the Returning officer should be responsible for the proper conduct of the election under the Rules
The instructions issued by the Election Authority to the Returning officer regarding the allotment of the symbols could not therefore be construed as interference with the election process by an authority unconnected with the process of election
Even if there was any mistake committed by either the Election Authority or the Returning officer in the allotment of symbol to the appellant the said mistake could not amount to a non compliance with the provisions of the Act or the Rules made thereunder
It was clear from clause c of rule II of the Rules made for the purpose of providing a machinery for the decision of the election disputes relating to panchayat union councils that every action amounting to such non compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election
It was only when the election court on a consideration of the entire material placed before it at the trial of an election petition came to the conclusion that the result of the election had been materially affected by such non compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate could be declared void
Rule I of the said Rules provided that an election held under the Act whether of a member or Chairman or Vice Chairman of a Panchayat Union Council could be called in question only by an election petition and not otherwise but the rule could not have the effect of overriding the powers of the High Court under Article 226 of the Constitution of India 767H768A F In NP Ponnuswami vs Returning Officer Namakkal Constituency and Ors 11952 SCR 213 decided by the Full Court this court first laid down as a matter of general principle that interference with an election process between the commencement of such process and the stage of declaration of the result by a court would not ordinarily be proper and next laid down that Article 329 b of the Constitution 762 had the effect of taking away the jurisdiction under Article 226 of the Constitution also in respect of the dispute arising out of election during the said period
The view of this Court in the above case laid down a salutary principle
770A B Taking into consideration all the aspects of the present case
including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress I and the fact the President of the Tamil Nadu Congress I Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and had not given his approval to respondent No 6 contesting as a candidate on behalf of his party the exercise of the jurisdiction by the High Court under Article 226 of the Constitution in this case could not be supported
The parties who were aggrieved by the result of the election could question the validity of the election by an election petition which was an effective alternative remedy
775D F The Division Bench of the High Court committed a serious error in issuing a writ under Article 226 of the Constitution quashing the Errata Notification allotting the symbol hand  to the appellant
Judgment of the Division Bench was set aside writ petition filed in the High Court was dismissed and the Returning officer was directed to proceed with the election in accordance with law from the stage at which it was interrupted by the order of the High Court
775G H N P Ponnuswami vs Returning officer Namakkal Constituency and Ors
  Nanhoo Mal  Ors
vs Hira Mal  Ors 19761 SCR 809 Malam Singh vs The Collector Sehore MP  Ors AIR 1971 M P 195 referred to