Case: Tinplate Company of India Limited Vs. Union of India and Others

S. P. BHARUCHA, J. The appellants manufacture plain sheets and corrugated sheets of iron and steel. They fell under Tariff Item 25 which was introduced into the Excise Tariff on 1-8-1983 2. The facts that we now state relate to the appeal filed by Tata Iron and Steel Co. Ltd. (CA No. 1460 of 1990). They are similar to the facts in the other appeal (CA No. 1461 of 1990) 3. On 31-7-1984, the Assistant Collector, Central Excise, approved with effect from 1-8-1983, a classification list filed by the appellant in respect of plain sheets as also corrugated sheets under Tariff Item 25(13). On 17-3-1985, to clause (xviii) of the Explanation to Tariff Item 25, which defined the word "sheet", the following words were added : "and includes a corrugated sheet". On 28-5-1985, the Collector of Central Excise, Patna, took the view that, prior to the aforesaid amendment, corrugated sheets could not have been treated as sheets under Tariff Item 25 and he directed the Assistant Collector to file an appeal against the order dated 31-7-1984, which had approved the appellants classification list as aforestated. On 29-5-1985, the Superintendent, Central Excise, issued to the appellant a show-cause- cum-demand notice based upon the view taken by the Collector on 28-5- 1985; it demanded from the appellant the sum of Rs 1, 07, 51, 636.16 as duty upon the corrugated sheets manufactured by the appellants during the period November 1984 to 16-3-1985. (Further proceedings upon this show-cause-cum-demand notice are still pending.) On 3-7-1985, the Assistant Collector, as directed by the Collector on 28-5-1985, filed an appeal against the order dated 31-7-1984. The appeal contended that corrugated sheets were not correctly classifiable under Tariff Item 25 prior to the amendment made on 17-3-1985, to the Explanation in Tariff Item 25. On 31-10-1985, the Collector (Appeals) set aside the order of the Assistant Collector dated 31-7-1984. He further ordered "that the respondent should pay duty on the plain flat sheets of iron and steel during the period from 1-8-1983 to 16-3-1985 at the rates applicable under TI 25(13) first and after corrugation under TI 68". The Superintendent, Central Excise, acting upon the order dated 31- 10-1985, (now called "the impugned order") required the appellant to furnish particulars relating to the plain sheets and corrugated sheets it had cleared during the period 1-8-1983 to 16-3-1985 4. On 4-4-1986, the appellant filed a writ petition in the High Court at Patna challenging the correctness of the impugned order and the consequential demand for particulars. Stay was granted on terms which came to be modified by this Court, and the condition then imposed upon the appellant in regard to stay has been complied with. Pending the disposal of the writ petition, the Superintendent, Central Excise, directed the appellant to pay duty pursuant to the impugned order in the sum of Rs 4, 08, 13, 618 after disposal of the writ petition. The writ petition was allowed by a learned Single Judge on the ground of limitation. In appeal, the Division Bench found that the learned Single Judge had been in error on the point of limitation (and the point of limitation is not now pressed). The Division Bench, having come to the conclusion that there was no time-bar, asked counsel for the appellant to address it on merits, but this was not done because the counsel urged that the matter should be remanded to a learned Single Judge. The Division Bench noted this, went into the merits on its own and came to the conclusion that the impugned order did not suffer from any irregularity or illegality. This is the order now under challenge. a 5. Raving heard the learned counsel, we are satisfied that the impugned order did suffer from illegality and irregularity. The appeal that was filed on 3-7-1985, pursuant to the view taken on 28-5-1985, related only to the classification of the corrugated sheets. Insofar as duty for the period November 1984 to 16-3-1985 was concerned, the appellants had already been issued with a show-cause-cum-demand notice on 29-5-1985, and the proceedings thereunder were and are still pending. In the appeal the Collector was within jurisdiction insofar as he held that the order dated 31-7-1984, classifying the corrugated sheets was incorrect but, his further direction was not. The scope of the appeal did not relate to a demand for duty for the period 1-8-1983 to 16-3-1985, nor was there a claim that duty should be paid first under Tariff Item 25(13) on plain sheets and again, after their corrugation, under Tariff Item 68 6. The appeals must, therefore, be allowed and the impugned orders of the Collector (Appeals) set aside insofar as they direct payment of duty on plain flat sheets of iron and steel first at the rate applicable under TI 25 and again, after corrugation, under TI 68. The demands for duty in accordance with these orders must also be set aside 7. The proceedings upon the show-cause-cum-demand notices may now proceed. We make it clear that we are expressing no opinion upon the validity of those demands or, indeed, upon the validity of the classification of corrugated sheets, and it shall be open to the appellants to make all available contentions in this behalf 8.

Decision:
1[ds]The proceedings upon the show-cause-cum-demand notices may now proceed. We make it clear that we are expressing no opinion upon the validity of those demands or, indeed, upon the validity of the classification of corrugated sheets, and it shall be open to the appellants to make all available contentions in this behalf